Reported Decision : 53 NSWLR 206 New South Wales Supreme Court CITATION : Gersten v The Law Society [2001] NSWSC 748 FILE NUMBER(S) : SC 10125/99 HEARING DATE(S) : 26-28/2/01, 1-2/03/01, 5-10/03/01, 12-16/03/01, 16-19/07/01 JUDGMENT DATE : 7 September 2001 PARTIES : Joseph Morris Gersten v The Law Society of New South Wales JUDGMENT OF : James J at 1 COUNSEL : A Swanwick - Plaintiff Dr J Griffiths/N Beaumont - Defendant SOLICITORS : In Person - Plaintiff Raymond John Collins - Defendant CATCHWORDS : Legal Practitioner - solicitor - suspension from practice outside New South Wales by reason of misconduct - Suprme Court Rules Part 65A r 3 - whether Court should otherwise order. United States v Chen, 933 F.2d 793 Juidice v Vail 430 US 327 (1977) Patel v The Law Society of New South Wales (1999) NSWCA 372 Morgan v Johnson (1998) 44 NSWLR 578 Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538 Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 CSR Limited v Cigna Insurance Australia Limited (1996-1997) 189 CLR 345 Hilton v Guyot (1895) 159 US 113 CASES CITED : Wentworth v NSW Bar Association (1992) 176 CLR 239 Jones v Dunkel (1958-9) 101 CLR 298 R v Buckland (1977) 2 NSWLR 453 Mahon v Air New Zealand (1984) 1 AC 808 Kioa v West (1985) 159 CLR 550 Rubie v Rubie (1911) 13 CLR 350 Attorney-General for New South Wales v Mayas Pty Limited (198) 14 NSWLR 342 United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 Pelechowski v Registrar Court of Appeal (NSW) (1999) 198 CLR 435 Russell v East Anglian Railway Co (3 Mac. & G.,104) DECISION : Application should be dismissed - making of orders deferred. JOSEPH MORRIS GERSTEN v THE LAW SOCIETY OF NEW WOUTH WALES 10125/99 INDEX SUBJECT PAGE INTRODUCTION 1 EVIDENCE 3 OUTLINE OF MATTER AND EVENTS 4 Generally 4 Proceedings in Relation to the Enforcement of the Contempt Order 67 Disciplinary Proceedings in Florida 73 State Attorney's Office Files Opened 90 Mr Gersten in Australia 90 Proceedings in the Federal Court of Australia 91 FURTHER EVIDENCE 95 Mr Gersten 95 Mr Richey 99 Ms Calzon 103 Mr Osborn 113 Dr McNaughtan 113 Mr Rosenblatt 115 Mr Hendrix 120 Other Witnesses 126 ADJUDICATION 126 Submissions 126 Interpretation of Pt 65A r 3 133 Considerations Requiring Caution and Restraint 139 Alleged Misconduct in New South Wales 163 Decisions of Courts in Florida 165 Did Mr Gersten Not Commit the Alleged Gersten Offences 170 Did the State Attorney's Office carry on an Investigation in Bad Faith for the Purpose of Harming Mr Gersten? 176 Did Mr Gersten honestly believe on reasonable grounds that The State Attorney's Office was carrying on an investigation In bad faith for the purpose of harming him? 190 Did the Florida Bar Adopt an improperly narrow view of what Factors were relevant in determining what would be an Appropriate sanction for any misconduct by Mr Gersten 193 If Mr Gersten returned to Florida, what would be likely to happen and would Mr Gersten be able to obtain justice in the courts in Florida? 193 Whether Mr Gersten has been "a Fugitive from Justice" 202 Summary and Conclusion 205 - - - - - - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JAMES J Friday 7 September 2001 10125/1999 - Joseph Morris Gersten v The Law Society of New South Wales JUDGMENT INTRODUCTION 1 HIS HONOUR: These are proceedings brought by Joseph Morris Gersten ("the plaintiff" or "Mr Gersten") against the Law Society of New South Wales ("the defendant" or "the Law Society"). 2 Mr Gersten is a citizen of the United States of America, who used to reside in the American State of Florida. He was admitted to practice as an attorney in the State of Florida in December 1975. On 5 March 1998 the Supreme Court of Florida made an order, suspending Mr Gersten from practicing law in Florida, until he complied with an order made against him on 18 March 1993 by her Honour Judge Amy Dean, a judge of the Eleventh Judicial Circuit in the State of Florida, and for one year thereafter. The Supreme Court of Florida held that by not complying with the order made by Judge Dean Mr Gersten had breached r 4-3.4(c) of the Rules of Professional Responsibility for lawyers in Florida which, subject to an exception which the Court held was not applicable, prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal. 3 In August 1996 Mr Gersten, who had come to Australia in 1993, was admitted to practice as a legal practitioner in New South Wales. On 7 January 1999 the Law Society wrote to Mr Gersten, referring to the order of the Supreme Court of Florida of 5 March 1998 and to the provisions of Pt 65A r 3 of the New South Wales Supreme Court Rules and inquiring whether Mr Gersten had made any application to this Court pursuant to Pt 65A r 3. 4 Pt 65A r 3(1) of the Supreme Court Rules provides, so far as is relevant:- "(1) Any legal practitioner: . . . (c) who is: (i) suspended from practicing… . . . as a lawyer… outside the State, by reason of misconduct, is suspended from practice: . . . (e) in the case of suspension… - during the period of suspension… unless the Court otherwise orders". 5 The present proceedings in which Mr Gersten seeks that the Court "otherwise order" under Pt 65A r 3(1)(e) were commenced on 20 January 1999. On that date Abadee J made an interlocutory order that Mr Gersten be permitted to practice in New South Wales as a legal practitioner, notwithstanding his suspension from practice as a lawyer in Florida, until the determination of the proceedings. This interlocutory order has remained in force and Mr Gersten has continued to practice in New South Wales. 6 On 20 January 1999 the proceedings were commenced ex parte, without naming any defendant. At the request of Abadee J, the Law Society consented to being joined as a defendant. The Law Society is the only defendant in the proceedings. EVIDENCE 7 A very large volume of evidence was adduced in the proceedings. 8 A number of witnesses made affidavits or gave oral evidence or did both. Witnesses for the plaintiff were the plaintiff himself; Maria del Carmen Calzon, a Florida attorney, who has acted for the plaintiff since 1993; William Richey, a Florida attorney, who acted for the plaintiff in 1992; Mr Osborn, a retired Miami police officer; Dr McNaughtan, an Australian medical practitioner, who last year travelled to the United States and carried out an investigation on behalf of Mr Gersten; and two New South Wales lawyers, Mr Lee, a solicitor, and Mr Coombs, a junior barrister. 9 In addition to this affidavit and oral evidence, a vast number of documents totalling several thousand pages were admitted into evidence in Mr Gersten's case. 10 Witnesses for the Law Society who made affidavits and gave oral evidence were Mr Joel Rosenblatt, an assistant State Attorney for the Eleventh Judicial Circuit in Florida, and Mr Billy Jack Hendrix, formerly the Director of Lawyer Regulation for the Florida Bar. Mr Stevens of senior counsel and Mr Grey of junior counsel gave oral evidence for the Law Society. A number of documents tendered by counsel for the Law Society were admitted into evidence. 11 Much of the evidence from both sides that was admitted, was admitted subject to objections to its relevance or objections that it was not evidence of the truth of assertions of fact made in the evidence. 12 I have decided that the matters and events set out in the following outline are established by the evidence and are either relevant in themselves or are at least relevant to a proper understanding of other matters and events which are relevant. In setting out in the outline what was said or written on any occasion, I am not to be taken as making any finding that what was said or written was true. Outline of Matters and Events Generally 13 As I have already stated, the plaintiff is a citizen of the United States of America. He was admitted to practice as an attorney in the State of Florida in December 1975. Apart from the matters I will specifically refer to in this judgment, he has not been the subject of any complaint of professional misconduct in Florida. 14 The plaintiff had a long political career in Florida. Between 1974 and 1981 he was a member of the Florida House of Representatives. Between 1981 and 1986 he was a member of the Florida Senate. In 1986 he was an unsuccessful candidate for the position of Attorney-General of Florida. Between 1988 and April 1993 he was a Commissioner of Dade County in the State of Florida, which includes the city of Miami. In 1992 the plaintiff announced his candidature for the position of Mayor of Dade County but he ultimately did not stand for that position. In April 1993 he was defeated in an election for Commissioners of Dade County. The plaintiff ceased being a Commissioner of Dade County on or about 20 April 1993. 15 The plaintiff asserted in one of his affidavits that he had as "a bitter political and personal adversary" Ms Janet Reno, who between 1978 and 1993 was the elected State Attorney for the Eleventh Judicial Circuit in Florida, that is, Dade County in Florida. As State Attorney for the Eleventh Judicial Circuit Ms Reno was responsible for the prosecution of crime within the geographical area of the Eleventh Judicial Circuit. After the election of Mr Clinton as President of the United States, Ms Reno became, in early 1993, Attorney-General of the United States. Ms Reno was replaced as State Attorney for the Eleventh Judicial Circuit by Ms Katherine Fernandez-Rundle ("Ms Rundle"). 16 Mr Gersten and other persons who have practised as lawyers in Florida gave evidence about the court system in Florida. The State is divided into twenty circuits, each of which has its own Circuit Court, which is a trial court. Circuit Court judges are elected for fixed terms and if they wish to continue in office have to stand for re-election against any other candidates. The State is divided into five districts and each district has its own Court of Appeal, which hears appeals from decisions of Circuit Courts within its district. Judges of a District Court of Appeal are appointed for terms of six years and can stand for re-election "on their record", that is without being opposed by another candidate but needing to receive in their favour a majority of the votes cast. The Supreme Court of Florida is the highest State Court in Florida. However, the Supreme Court of Florida exercises jurisdiction in only certain limited classes of cases and for most cases a District Court of Appeal is the final court of appeal. 17 The present proceedings have their origin in events which allegedly occurred in Florida on the night of 29 April 1992. There is no doubt that on that night Mr Gersten's Mercedes-Benz motor vehicle was stolen. However, there were two sharply conflicting versions of the circumstances in which Mr Gersten's car was stolen. One version, or rather one group of versions, was given by the car thieves themselves and certain other persons. It is convenient, although not fully accurate, to refer to all the members of this group of witnesses as "the car thieves", even though some of them did not, on anyone's version, participate in the theft of Mr Gersten's car. The other version was given by Mr Gersten himself. 18 In broad outline, and subject to a number of variations, the version given by the car thieves was that Mr Gersten had solicited a prostitute named Lisa McCann (also known as Tracy Sheehan) for the purposes of prostitution; that he had driven Lisa McCann to a house indicated by her (often referred to in the evidence before me as "the crack house"); that at the crack house he had asked to be supplied with, and had been supplied with, cocaine, which had been obtained for him by a man named Robert Maldonado; that Mr Gersten had smoked cocaine at the crack house; that he had engaged in sexual acts with Lisa McCann at the crack house; and that Claudia Lira, another prostitute, who had been at the crack house when Lisa McCann and Mr Gersten arrived, and her boyfriend, Kenneth Elswick, who had arrived at the crack house that evening after Mr Gersten arrived, had stolen Mr Gersten's car from where it was parked near the house. In one variant of the version given by the car thieves Elswick had robbed Mr Gersten of the keys to his car, at knife point. 19 The version given by Mr Gersten was that in the early evening he had returned to his home in his car; that he had parked his car in front of his home; that he had gone inside his home, leaving the car keys in the car; that he had lain down and fallen asleep; and that after he awoke he had discovered that his car was missing. Mr Gersten was particularly concerned about highly sensitive documents, which he said he had left in the car. He had telephoned his attorney, Mr William Richey, who had come to his home. After discussing the matter with Mr Richey, Mr Gersten had reported the theft of his car. 20 One form of their version which was allegedly given by the car thieves was set out in considerable detail in an affidavit made on 5 June 1992 by Ronald Ohlzen, an investigator of the Dade County State Attorney's Office, in support of an application to a judge for the issue of a "search warrant", which was actually an application for an order authorising the taking from Mr Gersten of samples of his hair for the purpose of forensic analysis to determine whether Mr Gersten had used cocaine. Although it was submitted on behalf of Mr Gersten in these proceedings that the version of the car thieves varied from person to person within the group and that each person's version varied over time, and Mr Ohlzen made a supplementary affidavit in which he said that one piece of information (an estimate of time) which he had concluded in his principal affidavit as having been received from Lisa McCann could not be true, it is useful to set out verbatim the information which Mr Ohlzen said in his affidavit he had obtained. Mr Ohlzen, as the deponent of the affidavit, referred to himself in the affidavit as "the affiant". In his affidavit Mr Ohlzen said:- "On May 19, 1992, your Affiant spoke with Officer Paul T. Miyares, Coral Gables Police Department, who stated that at 10:15 p.m. on April 29, 1992 Joseph M. Gersten reported to him that his 1987 blue Mercedes, four-door sedan had been stolen from the driveway of Gersten's residence at 1017 Hardes Road, Coral Gables, Dade County, Florida, between 8:00p.m. and 8:30 p.m. Based on this oral report, Officer Miyares prepared and submitted to the Coral Gables Police Department a written report of the auto theft under case number 92-8249. On May 11, 1992, your Affiant spoke with Lisa McCann, also known as Tracy Sheehan, a known prostitute and crack cocaine addict, who stated that on April 29, 1992, between 6:15 p.m. and 7:00 p.m., after being solicited for prostitution by a white/male, whom she later identified as Joseph M. Gersten from newspaper articles and television programs, that she drove with Gersten in a blue Mercedes, four-door sedan to 471 Northeast 31st Street, Miami, Dade County, Florida. McCann stated that the two individuals named Claudia (Lira) and Roberto (Maldonado) were in the front room when they entered. McCann and Gersten went into the bedroom. Upon entering this bedroom, Gersten gave McCann $30.00, told her to get some crack cocaine for them to smoke. McCann stepped out of the bedroom and gave the money to Roberto and asked him to get some rock (crack cocaine). Roberto left and when he returned Roberto gave McCann rock cocaine. McCann, at the request of Gersten, purchased a crack cocaine pipe from Claudia for $10.00 and gave the pipe to Gersten. With the pipe McCann and Gersten smoked two rocks of crack cocaine. Gersten gave McCann money two more times and told her to obtain more crack cocaine for them to smoke while inside the house on April 29, 1992. Each time McCann gave the money to Roberto and each time Roberto left and returned with rocks of crack cocaine. McCann said on one occasion she gave one rock back to Roberto as a tip. McCann said she gave the remaining rocks of crack cocaine to Gersten and together they smoked several of them. McCann said that while in the bedroom with Gersten, two (2) people, Claudia Lira and Kenny Elswick came into the bedroom and Lisa McCann left the house. Lisa McCann made this statement freely and voluntarily. On this same date, your Affiant spoke with Claudia Lira, also known as Napalitano, a known prostitute and crack cocaine addict, who stated that on April 29, 1992, in the early evening, Lisa McCann came to 471 Northeast 31st Street with a "date". Lisa wanted Claudia Lira and Roberto to leave as the "date" was "real paranoid." Claudia Lira told Lisa McCann that she and Roberto would not leave, but Lisa McCann and the "date" could use the bedroom. Claudia Lira identified the "date" to your Affiant as Joseph M. Gersten, whose photograph she observed on television and whose identification she found inside a blue Mercedes, four-door sedan on April 29, 1992. Claudia Lira said that Lisa McCann came out and told her she needed "her stem" (rock cocaine pipe). Claudia Lira asked who it was for and Lisa McCann told her it was for her "date". Claudia Lira offered the pipe for sale for $20.00 Lisa McCann told her she would only pay $10.00 and the pipe would be sold to McCann by Claudia Lira. Claudia Lira said she saw McCann give Roberto money and him to go and get some rocks for the "date" and her. Roberto returned shortly and both she and Roberto "took a hit off the rocks", then gave the rocks to Lisa McCann who took them into the bedroom and shut the door. Lisa McCann came out a third time and gave Roberto money and asked him to get some more rocks for her and her "date". Again, Roberto left and returned with some cocaine which Claudia Lira saw Roberto give to Lisa McCann, who returned to the bedroom and shut the door. Claudia Lira said that someone knocked on the front door and Roberto opened the door and let Kenny Elswick in. Claudia Lira told Kenny Elswick that she wanted to rob the "date" and Kenny said, "Let's do it." With that Claudia Lira said she and Kenny Elswick entered the bedroom. Upon entering, Claudia Lira saw Gersten taking a "hit" on the cocaine pipe as he was lying on the bed. Claudia Lira told Lisa McCann to get out of the bedroom and Lisa McCann left. Gersten put the pipe and the rocks on the floor. Claudia Lira made this statement to your Affiant freely and voluntarily. State Attorney's Office/Criminal Investigation Division Investigator Karen Jacobson told your Affiant that on May 11, 1992, she spoke with Roberto Maldonado, a convicted felon and known crack cocaine user, who said that on Wednesday, April 29, 1992, in the early evening he was lying down in the front room of a house located at the rear of 471 Northeast 31st Street, Miami, Dade County, Florida. Claudia Lira was also there. There was a knock on the door and a prostitute named Lisa McCann was there with a "date". Maldonado subsequently identified the "date" to your Affiant as Joseph M. Gersten. The man, Joseph M. Gersten, gave him two twenty-dollar bills to purchase crack cocaine. Maldonado left and obtained four dime rocks of cocaine and came back to the house. Claudia Lira was in the front room and the bedroom door was shut. Lisa McCann opened the bedroom door and he gave the rocks to her. Lisa McCann came out two more times and gave Maldonado money and asked him to get some more rocks. Each time he went and obtained rocks of crack cocaine and brought them back to the house and gave them to Lisa McCann. On one occasion he, Maldonado, alone with Claudia Lira, smoked one of the rocks. Maldonado said after a period of time there was a knock on the front door and he went to the door and let Kenny Elswick in. He said that he left shortly after Kenny Elswick came in and the "date" was still in the bedroom with Lisa McCann. Robert Maldonado made this statement freely and voluntarily. State Attorney's Office/Criminal Investigation Division Investigator Karen Jacobson told your Affiant that on May 14, 1992, she spoke with Robert Cabanas, a cab driver with Diamond Cab Company. Cabanas said that in the evening of Wednesday, April 29, 1992, he was driving his cab on Biscayne Boulevard at 29th Street, Miami, Dade County, Florida. He observed an individual whom he later identified from newspaper photographs and television programs as Joseph M. Gersten standing on the south side of the intersection on the sidewalk hailing him. Cabanas said that Gersten was "glassy-eyed" as if on some type of drug, jittery, and fidgety. He was dressed neatly and appeared to be out of place for the area. Gersten asked to be taken to the 1000 block of Hardes Road in Coral Gables, Dade County, Florida. Cabanas did in fact take Gersten to that location. On May 28, 1992, your Affiant following a waiver of immunity and Miranda rights, spoke with Kenneth C. "Kenny" Elswick, a known crack addict and close associate of Claudia Lira, said that on April 29, 1992, in the early evening he went to 471 Northeast 31st Street, Miami, Dade County, Florida. He said he knocked on the front door and "Roberto" opened the door and let him in. Claudia Lira was also in the front room. Lira informed him that Lisa McCann had a "date" in the bedroom who had big money and that Lisa McCann and the "trick" had been smoking rocks. Claudia Lira asked Elswick "if he was down," meaning ready to rob the "date". Elswick told Lira, "Let's do it" and they entered the bedroom. Lisa McCann fled the room and Elswick said he observed a white male, whom he subsequently identified as Joseph M. Gersten from identification Claudia Lira had in her possession and from television news programs, lying on his side on the bed with a cocaine pipe and rocks in his hand. Gersten placed the pipe and rocks on the floor partially under the bed. Elswick said that he took $40.00 from Gersten and Claudia Lira searched Gersten's pants pockets. Elswick further stated that Gersten got dressed and when he went outside Gersten discovered that his car was missing. Elswick said that Gersten walked the neighbourhood looking for his Mercedes, but could not find it. Elswick said he walked toward Biscayne Boulevard with Gersten and saw Gersten hail a cab on the Boulevard and drive away in the cab." 21 Mr Gersten gave a detailed account of what he said had happened on 29 April 1992 in an affidavit sworn by him on 28 November 2000 in these proceedings, which was described as his "fourth" affidavit. In this affidavit Mr Gersten said:- "Some time during the morning of 29 April 1992 I was contacted by Ron Book, a lawyer and lobbyist, who asked me to attend in his stead at a luncheon with some corporate executives. I agreed to do so. At lunchtime I attended at the Intercontinental Hotel in Miami, and met the visiting businessmen. As I recall, the discussion focused on how they should go about seeking to obtain business from Dade County. During luncheon an acquaintance of mine, Jay Weiss, entered the luncheon room. I was scheduled to travel to France with Weiss and his wife and my fiancee about a week later. I was aware that one of Weiss's closest friends had died a few days earlier - indeed, I had attended the funeral. So I concluded discussions with the businessmen and joined Weiss. Over the next couple of hours we remained together drinking. By the time I left I was very significantly affected by alcohol, and was feeling very tired. I then returned to my law office. I spent only a short time at my law office, because I was alcohol-affected and very tired. I left and went to a menswear store (Peter Kent Menswear) to collect some clothes which I had ordered for the impending trip to France. I chatted to the proprietor for a short while and then left. I estimate that I departed from the store at around 6.15pm that evening, and drove home. (My estimate of that time is based partly on records which show the time at which the store was closed and the burglar alarm set that day). I have no recollection of stopping to buy petrol on the way home, but it is possible that I did so. I estimate that I arrived home at about 6.45-7.00pm. Upon arrival home I stopped the car in the driveway of my house. I needed to use the toilet urgently, so I went straight into the house and upstairs, intending to then return to unload the car etc. I left the car keys in the car. (The keys to the house were separate from the car keys). However, I lay down briefly on the bed and immediately fell asleep. I'm unsure what time I awoke, but when I did so I then went downstairs to unload and secure my car. I found that the car was no longer where I left it in the driveway. I was very concerned, because there were some highly-sensitive documents in the car relating to an investigation which I had been conducting into money-laundering and corruption. The documents included memoranda from a confidential informant, photocopies of which I had provided to the F.B.I some time earlier. There were also other confidential documents. I immediately rang my attorney, William Richey, to get his advice about what I could afford to say to the police about those documents when I reported the car stolen. Richey offered to come to my house, which he did. It took him not less than half an hour to get to my house after I called him. After discussing the matter with Richey I rang the City of Coral Gables Manager, Jack Eades, and told him of the theft of the car. (The Coral Gables police report to Eades). I told him that it contained very sensitive documents which were not to be opened if the car was recovered. Eades said that he would contact the police and have someone call me back. A few minutes later a senior police officer called me back, asked me what had happened, and said that he would send a patrolman to my home. A short time later a police officer arrived, and I formally reported the theft of the car to him. From my recollection my fiancee and our maid arrived home shortly before the police arrived. Mr Richey left when the police arrived. I estimate that the time-lapse between my discovery of the theft of the car and the arrival of the police was approximately 1-1½ hours. The police officer who attended at my home records that he arrived there at 10.15pm. That leads me to conclude that my discovery of the theft was at about 8.45pm-9.15pm." 22 Mr Gersten's car was recovered the following day 30 April 1992. According to a complaint/arrest affidavit sworn by a police officer (Calzon Exhibit 74), which, arguably, is inconsistent with other evidence, police observed Elswick driving the vehicle, made a computer check of the registration "tag" which revealed that the vehicle had been stolen the previous day and stopped the vehicle. According to the affidavit, Elswick opened a door of the vehicle and ran but he was apprehended shortly afterwards. It is unclear who else, apart from Elswick, was in the vehicle, when it was stopped. 23 Under Florida law theft of an automobile is a felony punishable by a maximum penalty of imprisonment for five years. The expression "grand theft" occurring in some of the documents seems to be equivalent to "theft" and does not indicate an aggravated form of theft, such as robbery. 24 In early May 1992 Mr Gersten went to France with his fiancee Rosario Kennedy, on the trip which had been planned. He remained in France for about a month. While Mr Gersten was in France, great publicity was given in the media in Florida to the allegations made by the car thieves. The Dade County State Attorney's Office announced that it was investigating the allegations made by the car thieves against Mr Gersten. According to the allegations made by the car thieves, Mr Gersten could have committed the offences of solicitation of prostitution, use and distribution of cocaine and making a false police report about the circumstances in which his car had been stolen ("the alleged Gersten offences"). 25 In May 1992 Mr Gersten's attorney in Florida (or at least one of his attorneys) was Mr William Richey. After the Dade County State Attorney's Office had announced that it was investigating the alleged Gersten offences, Mr Richey arranged a meeting at the Dade County State Attorney's Office with Mr George Ray Havens, who was the chief investigator of the Dade County State Attorney's Office, Mr Richard Gregorie, who was an assistant State Attorney, and Ms Karen Jacobson, an investigator in the Dade County State Attorney's Office. The meeting took place on 21 May 1992. 26 In an affidavit sworn by Mr Richey on 13 August 1992 Mr Richey gave an account of what had happened at this meeting, which he substantially repeated on a number of subsequent occasions, including in evidence given on 14 January 1993 before Judge Amy Dean of the Eleventh Judicial Circuit in Florida and in evidence given by video link in these proceedings before me. Mr Richey said in his affidavit:- "At the meeting, Mr Gregorie and Mr Havens made it clear to me that they were absolutely positive Mr Gersten had been with a man named Kenneth Elswick, a prostitute known as Claudia Lira and a prostitute known as Tracey Sheehan on the evening of April 29, 1992, and that he had been robbed by Ms Lira and Mr Elswick. It was their absolutely firm position that Mr Gersten had filed a false police report. Mr Havens and Mr Gregorie made clear their desire for Mr Gersten to come to Mr Havens' office and give a full statement under oath, confessing to what they believe to be the true events of that evening. They made it absolutely clear that, if Mr Gersten were to give testimony which deviated in any way from what Mr Havens and Mr Gregorie were positive had happened that evening, then Mr Gersten would be charged with perjury. Mr Havens and Mr Gregorie were very straightforward and honest in their statements of their beliefs and their plans. They very clearly meant exactly what they said". 27 It was this view by Mr Richey of the import of what he was told by Mr Havens and Mr Gregorie at the meeting on 21 May 1992, which led to the assertion later made by and on behalf of Mr Gersten that the State Attorney's Office was seeking to make Mr Gersten the victim of a "perjury trap". I will return later in this judgment to the subject of a "perjury trap". 28 On 27 May 1992 Kenneth Elswick signed a document which read in part, "appearing…. before the State Attorney Eleventh Judicial Circuit of Florida in and for Dade County to testify in a certain matter pending before her in which I am a potential defendant", he waived all immunities to which he would otherwise have been entitled and acknowledged that his waiver "subjects me to any and all prosecutions, penalties or forfeitures for or on account of any transaction, matter or thing to which I may testify or produce evidence and that any testimony which I shall give may be used against me in any criminal investigation or proceeding" 29 It would seem that Kenneth Elswick did make a statement to the State Attorney's Office on 28 May 1992, which it would seem from the document of 27 May 1992, would not have been "immunised", that is the subject of any immunity. Such a statement is referred to in Mr Ohlzen's affidavit of 5 June 1992. However, no copy of a statement by Kenneth Elswick on 27 May or 28 May 1992 was in the files of the State Attorney's Office relating to Mr Gersten and the car thieves, when these files were made public in about the end of July 2000. 30 On 1 June 1992 the State Attorney wrote a letter to Mr Gersten, care of Mr Richey, informing Mr Gersten that the State Attorney was investigating the allegations against Mr Gersten of "distribution of cocaine, solicitation of prostitution and filing a false police report" (that is, the alleged Gersten offences), as well as the theft of Mr Gersten's car, and inquiring whether Mr Gersten would be willing to speak voluntarily to the State Attorney's Office about these matters. It is apparent that Mr Gersten decided not to speak voluntarily to the State Attorney. On 5 June 1992 a form headed "Disposition" was completed in the State Attorney's Office. In the form the defendant is identified as "Kenneth Elswick" and the offence is identified as "grand theft auto". The words "no action" are written on the form and this entry is explained by a comment on the form that "this cause was to be no-actioned at arraignment because the victim did not appear for the pre-file conference". In a late affidavit Mr Rosenblatt gave evidence about the effect of a decision to "no-action" a case. 31 On 5 June 1992 the application for a "search warrant", to which I have already referred, was made. In the affidavit in support of the application Mr Ohlzen, as well as summarising the information provided by the car thieves, said that he had been informed by a forensic chemist that, if a person smokes cocaine, cocaine will be deposited in that person's hair, which can then be analysed for the presence of cocaine. On the day the application was made a judge issued a search warrant, authorising the taking of samples of hair from Mr Gersten. 32 Samples of head, underarm and pubic hair taken from Mr Gersten pursuant to the search warrant were analysed in the laboratory of the Federal Bureau of Investigation in Washington. The laboratory issued a report in which it said that the samples were "negative for cocaine". The laboratory added in the report "although this is consistent with the suspect not being a casual or recreational user of cocaine, the lack of finding cocaine does not preclude the possibility that this individual may have used cocaine one time or at very infrequent intervals in the past". 33 On 10 June 1992 Claudia Lira was interviewed at the State Attorney's Office by Mr Gregorie and Mr Havens. She had been served with a subpoena. Under Florida law a State Attorney has power to serve a person with a subpoena requiring that person to make a statement on oath for the purposes of an investigation being conducted by the State Attorney. However, a person who makes a statement to the State Attorney under the compulsion of a subpoena has both "use immunity" and "derivative use immunity". As explained by Mr Gregorie to Claudia Lira in the course of the interview on 10 June 1992, "that means you cannot be prosecuted for anything that you tell us or any leads we get from what you tell us". On 10 June Claudia Lira made a statement in question and answer form, running to more than fifty pages. There was some evidence before me of earlier accounts by Claudia Lira to the Federal Bureau of Investigation on 30 April and 2 May and to the State Attorney's Office on 11 May. Mr Ohlzen in his affidavit of 5 June 1992 summarised information which he said Claudia Lira had supplied on 11 May. There are some differences between the statement of 10 June and the summary of information supplied by her which is set out in Mr Ohlzen's affidavit of 5 June. It would seem clear that the statement made on 10 June was the subject of immunity. It is unclear to me to what extent, if at all, her earlier accounts were "immunised". 34 Towards the end of June 1992 what was referred to as a "Chinese wall" was set up within the Dade County State Attorney's Office. The purpose of the Chinese wall was to separate the investigation being carried out by Mr Gregorie into whether Mr Gersten had committed the alleged Gersten offences, in which Mr Gersten was the target of the investigation; and an investigation to be carried out by another assistant State Attorney, Mr Michael Band, into the theft (or robbery) of Mr Gersten's car, in which Mr Gersten was the victim. Precisely what was involved in the concept of a "Chinese wall" is a matter to which I will have to return later in this judgment. At least one implication of the Chinese wall was that any statement in respect of which there was use and derivative use immunity, which had been obtained by Mr Gregorie from a person who was a potential defendant in any prosecution for the theft of Mr Gersten's car, could not be provided to Mr Band. It would seem that the statement made by Claudia Lira on 10 June 1992 was the subject of use immunity and derivative use immunity. It would seem that any statement made by Kenneth Elswick on 28 May 1992 was made in circumstances where he had waived immunity and was, accordingly, available to be used in any prosecution of him for the theft of Mr Gersten's car. However, there were assertions in some of the documents admitted into evidence in these proceedings that Elswick did not make any statement which was not "immunised". 35 On 24 June 1992 Kenneth Elswick was tape recorded making an offer to Mr Riley, an investigator retained by Mr Richey, to change his evidence, favourably to Mr Gersten, in consideration of payment of the sum of ten thousand dollars. 36 On 25 June 1992 Mr Band telephoned Mr Richey, informing him that he had been appointed to conduct an investigation into the theft of Mr Gersten's car; that he would be issuing a subpoena to Mr Gersten to answer on oath questions to be asked by Mr Band; that Mr Gersten would have use immunity and derivative use immunity for his testimony to Mr Band; and that there would be a Chinese wall between Mr Band's investigation and Mr Gregorie's investigation. 37 On 29 June 1992 Mr Gregorie made an "inter-office memorandum" in the office of the State Attorney, recording that the items listed were being provided by him to Mr Band. Twenty-nine items were listed, including numerous "reports" and "notes", a statement by Maldonado, two statements by Rosario Kennedy and a report of an interview with Lisa McCann. There is no reference in the list to any statement by Kenneth Elswick or Claudia Lira. On the same day Mr Band made a handwritten note, recording that he had received from Mr Gregorie the documents which he listed, including a report "Mike Osborn - 5-7-92" (that is, 7 May 1992). 38 On 1 July 1992 Mr Richey wrote a letter to Ms Reno. Before writing the letter, Mr Richey had advised Mr Gersten that, in Mr Richey's opinion, the State Attorney's Office was endeavouring to set a perjury trap for Mr Gersten. In his letter of 1 July 1992 Mr Richey asked Ms Reno to reconsider whether Mr Gersten should be subpoenaed. He submitted that it was unnecessary to subpoena Mr Gersten, because the "confessions" of Claudia Lira and Kenneth Elswick would be admissible in a prosecution of them for stealing Mr Gersten's car. Mr Richey referred to the investigation of the alleged Gersten offences by Mr Gregorie and to the meeting on 21 May and he repeated his assertions about the import of what Mr Havens and Mr Gregorie had said at that meeting, including that "it was… made abundantly clear that if Mr Gersten's testimony deviated in any way from what Mr Gregorie and Mr Havens knew to be true, then Mr Gersten would be charged with perjury". Mr Richey asserted that the subpoenaing of Mr Gersten created a "perjury trap" and he referred to a law review article Gershman, The Perjury Trap 129 U.Pa.L.R.624. Mr Richey added that the subpoenaing of Mr Gersten "will not be productive because he will not testify". Mr Richey asserted that the decision to subpoena Mr Gersten to give sworn testimony had the appearance of the State Attorney's Office attempting to achieve by one means what it could not achieve by another. 39 Notwithstanding Mr Richey's letter and a further meeting at the State Attorney's Office, Mr Band preceded with the issue of a subpoena to Mr Gersten. On 8 July 1992 the Dade County Circuit Court issued a witness subpoena addressed to the Sheriffs of the State of Florida, commanding them to summon Mr Gersten to appear before the State Attorney on 20 July 1992. The subpoena was served on 9 July on Mr Richey, who had instructions to accept service. 40 On 20 July 1992, the return date of the subpoena, Mr Richey on behalf of Mr Gersten brought a motion for a protective order against the subpoena, on the grounds that the subpoena had been issued in bad faith. In the motion it was alleged that "having utterly failed to make a prosecutable case against Mr Gersten (on the alleged Gersten offences) the State Attorney's Office claims it wants to investigate the car theft". In the motion it was alleged that the State Attorney's Office was seeking to set a perjury trap for Mr Gersten. The relief sought in the motion was that there be "an evidentiary hearing" of the allegation that the subpoena had been issued in bad faith, together with ancillary directions. In the motion there were listed a number of the problems which it was alleged had arisen for the State Attorney's Office in prosecuting the alleged Gersten offences. 41 The hearing of the motion for a protective order took place before Judge Knight on 20 July 1992. 42 Counsel for the State Attorney (Mr Shiffrin) submitted that "the State's Attorney has the power to investigate crimes and the legislature has seen fit to give a State's Attorney the power of subpoena. Mr Gersten is not a target. We need his testimony… Mr Gersten reported the theft of his motor vehicle. That is the case we are investigating. He is a material witness to that matter. We expect him to come in and tell the truth and behave like any other citizen". Mr Shiffrin submitted that Judge Knight "couldn't go behind the subpoena". 43 Judge Knight denied the motion for a protective order, without giving reasons. 44 In late July 1992 Mr Richey ceased acting for Mr Gersten and Mr Richard Sharpstein commenced acting for Mr Gersten. 45 On 31 July 1992 Mr Sharpstein wrote a letter to Mr Band (Calzon Exhibit 93). The letter was addressed to "Dear Michael". In the letter Mr Sharpstein informed Mr Band that he was preparing a motion for reconsideration of Mr Gersten's motion for a protective order. Mr Sharpstein said that Mr Gersten would be happy to answer the two questions necessary for his role as a witness in the prosecution of the theft of his car, namely (1) that he did not know Elswick or Lira and (2) he had not given either of them permission to use his car. Mr Sharpstein asked Mr Band to "contact me on Monday August 3, 1992, with your response to this suggestion". Mr Sharpstein added that, unless he heard from Mr Band, he would file the motion for reconsideration on 4 August. 46 The letter of 31 July 1992 was faxed by Mr Sharpstein to Mr Band. On a copy of the fax cover sheet are written in Mr Band's handwriting the words and figures "3 Aug '92 spoke w/Dick-No-MB". A submission was made by counsel for Mr Gersten in the present proceedings, that the notation on the copy of the fax cover sheet recorded a communication between Mr Band and Mr Gregorie, in which Mr Band sought Mr Gregorie's opinion on whether Mr Sharpstein's suggestion should be accepted and Mr Gregorie advised that the suggestion should not be accepted and it was further submitted that such a communication between Mr Band and Mr Gregorie was powerful evidence that the Chinese wall was ineffective. However, I am satisfied that this notation on the copy of the fax cover sheet merely recorded that on 3 August 1992 Mr Band spoke to Mr Richard Sharpstein, as Mr Sharpstein had requested, rejecting the suggestion made in Mr Sharpstein's letter of 31 July. 47 The motion for reconsideration of Judge Knight's order and a supplemental motion on behalf of Mr Gersten to quash the subpoena came on for hearing on 7 August 1992 before Judge Schwartz. Judge Schwartz held that he did not have jurisdiction to reconsider what Judge Knight had decided. His Honour added:- "However, in the interests of a full adjudication of the matter before me, I will consider the merits of the application. I find, as did Judge Knight, that even accepting as true for the purposes of this argument every statement made in the motion, the court has no authority whatsoever to interfere with the prosecutorial function in the present stage and I will deny the motion for reconsideration and the motion on the merits to quash the subpoena in question". 48 On 11 August 1992 Mr Sharpstein and Mr Gersten appeared before Mr Band at the State Attorney's Office. Mr Sharpstein inquired whether it would be the State Attorney's intention to use any statement made by Mr Gersten, if the State Attorney considered it could ground a prosecution for perjury. Mr Band replied, "you are putting the horse before the cart here (sic). I can only anticipate that in response to questions I ask, the answers of Mr Gersten will be accurate, complete and truthful". 49 Mr Band made the following further remarks:- "He's immunized from any criminal prosecution save for perjury. That is, if he lies to me and I can establish that, in fact, it is a lie, a perjury case may be forthcoming. . . . The purpose of Mr Gersten being here - and I don't really particularly plan to go into details, other than to say I have an investigation involving - I will grant you some leeway - to some extent involving the theft or taking of his automobile. My questions may or may not be limited to that. . . . However, I'm not limiting my questions to basically, 'Is he the owner of a certain Mercedes vehicle,' 'Did he give permission to two individuals to use that vehicle?' My questions, in all candor, will be much broader than that and expand well beyond that. . . . and I will emphasize this, I have not talked to Mr Gregorie concerning my investigation… I'm only concerned with my investigation". 50 Mr Sharpstein on behalf of Mr Gersten said that Mr Gersten would decline to answer any questions, other than the basic questions which had already been referred to by himself and Mr Band. 51 On the afternoon of 11 August 1992 the parties went before Judge Amy Dean, as a judge of the Eleventh Judicial Circuit of the State of Florida. This was the first time Mr Gersten's matter had come before Judge Dean. 52 Before Judge Dean Mr Shiffrin on behalf of the State Attorney's Office said:- "The State would be asking that the court find - the court first order the witness to answer the questions of the State Attorney and, if the witness persists in declining to answer, that the court hold the witness in contempt. We specifically would ask the court to hold the witness in civil contempt, and permit the witness to purge himself of that contempt should the witness agree to testify and, in fact, testify before the State Attorney". 53 After hearing argument Judge Dean asked to be supplied with transcripts of the proceedings before Judge Knight and Judge Schwartz and of the hearing at the State Attorney's Office that morning and adjourned the proceedings to the following day. The evidence before me does not disclose what happened the following day but it would appear that some order was made requiring Mr Gersten to attend at the State Attorney's Office on 14 August and answer questions asked by Mr Band. 54 On 14 August 1992 Mr Gersten and Mr Sharpstein again attended before Mr Band at the State Attorney's Office. Mr Band explained to Mr Gersten that he would have immunity for his answers to Mr Band's questions but that, if he lied, he would be liable to be prosecuted for perjury. Mr Band then began formally questioning Mr Gersten. In response to questions from Mr Band, Mr Gersten gave his name and address. Mr Gersten was then asked:- "Let me call your attention to the 29th of April, 1992, at approximately six o'clock in the afternoon. Where were you?" Mr Gersten answered this question:- "At this point, I am refusing to answer any further questions upon advice of counsel. There are pending motions that counsel wishes to bring to the court's attention and have litigated". 55 The proceedings were then adjourned to Judge Dean's courtroom. 56 On the afternoon of 14 August 1992 the parties appeared before Judge Dean. Two motions had been filed on behalf of Mr Gersten, a motion for disclosure by the State Attorney's Office of electronic surveillance by the State Attorney's Office of telephone calls which Claudia Lira had, at the instance of the State Attorney's Office or the Federal Bureau of Investigation, made to Mr Gersten and a motion that there be a hearing in relation to the first motion which would include the persons involved in the surveillance giving evidence. It was at this hearing that Mr Richey's affidavit of 13 August 1992 was tendered. An issue that arose was whether, before any Chinese wall was erected in the State Attorney's Office or notwithstanding any alleged Chinese wall, Mr Band had heard the surveillance tapes or had otherwise acquired information about the contents of the surveillance tapes and intended to base questions to be put to Mr Gersten on the contents of the tapes. 57 At pages 42 and 43 of the transcript of the proceedings on 14 August Judge Dean said:- "We have listened to these tapes… I am going to accept the representation of Mr Shiffrin and the grand jury, Mr Band, that he is completely lacking in any knowledge regarding what is contained in these tapes - having heard the tapes, the court would be completely hard pressed to figure out what kind of question could ever come from them, since they seem to be completely one-sided and arguably exculpatory and hardly provide any type of information. Accordingly, I will require that Mr Gersten appear on Monday to give his sworn statement to the State Attorney's Office. Again, if there is a particular question during that time other than what we have addressed here today, he is to answer the question. If there are other types of issues regarding this perjury trap that you have discussed, you can, of course, preserve that for the record. . . . So ask your questions. You, Sir, must answer the questions with the restraints and the freedom that I have allowed, based upon what I have just said. And if there are any further concerns with regard to answering any questions, you can at that time raise your objection, note it for the record, certify it and we will discuss it, probably by way of a motion to compel…". 58 Judge Dean granted the motion for disclosure, the State Attorney having consented to it. Counsel for Mr Gersten noted that the court had denied Mr Gersten's application for an "in depth" hearing as to the making of the surveillance tapes and any derivative use of the surveillance tapes and asked for a stay, so that a petition for the review of Judge Dean's decision could be brought. Judge Dean granted a limited stay. 59 A petition for a writ of certiorari was filed on 17 August 1992. On 18 December 1992 the District Court of Appeal denied certiorari. 60 A motion by Mr Gersten to disqualify the Dade County State Attorney's Office came before Judge Dean on 14 January 1993. The object of the motion was, not to terminate the investigations which up to that point had been conducted by the Dade County State Attorney, but to compel the transfer of those investigations to the State Attorney for some other Judicial Circuit in Florida. 61 On the hearing of the motion all of Mr Richey, Mr Havens and Mr Gregorie gave evidence, including evidence about what had been said at the meeting at the State Attorney's Office on 21 May 1992. Mr Sharpstein, who appeared for Mr Gersten, had to call as his witnesses, not only Mr Richey, but also Mr Havens and Mr Gregorie. The transcript of Mr Richey's evidence, only, was admitted in the proceedings before me as Exhibit Richey 3. A full transcript of the hearing was later handed up and admitted into evidence. 62 In his evidence in chief Mr Richey gave evidence that at the meeting Mr Havens had said that "he wanted Mr Gersten to come in, to give him a full and complete statement, to tell the truth as Mr Havens understood it …The truth was, in Mr Havens' mind, that the results of his investigation indicated that Commissioner Gersten had been at that crack house at that night and participated in certain events with the people there, and that his position is that if Mr Gersten did not relate the story as he (Mr Havens) knew it to be true, that he (Mr Gersten) would be charged with perjury". 63 Mr Richey said that on the basis of his analysis of the meeting, he had given Mr Gersten certain advice. 64 Mr Richey said that as at 21 May 1992 he had not believed that there was a perjury trap for Mr Gersten but as "the State's case became a great deal more problematic than they had thought it was… I developed a very deep concern about the problem of the perjury trap". It had appeared to Mr Richey that the strategy of the State Attorney's Office was to place Mr Gersten in a position, where either he would "tell the story that they wanted to hear and then they could use it against him, if he attempted to testify in a subsequent prosecution" or "if he told a story that they did not want to hear, they would be able to charge him with perjury, which would be a much easier crime to convict someone of, than the case they had been investigating, which had basically fallen apart". 65 In cross-examination Mr Richey said that what Mr Havens had said at the meeting, very close to verbatim, was:- "He (Mr Gersten) is going to come in here and he is going to sit in this chair. He is going to admit every single bit of what happened, according to what I have just relayed to you, or I am going to charge him with perjury". 66 Mr Richey gave evidence in cross-examination about the Chinese wall. He said that the Chinese wall would be ineffective. However, he agreed with a question put to him that the purpose of the Chinese wall was to ensure that someone on one side of the wall should not hear some "immunised" testimony given on the other side of the wall. Mr Richey said:- I say that once Mr Band has received his information and once he is proceeding under the concept of the Chinese wall, that other people who have previously been involved in the rest of the investigation should try to stay away from him. That is all what I was saying". 67 Mr Richey agreed that at the meeting he had said words to the effect that, if Mr Gersten would enter into some king of drug rehabilitation program, "maybe this whole thing would go away" 68 As I have already indicated, Mr Havens was called as a witness by Mr Gersten's counsel. Mr Havens said that he did not know where Mr Gersten had been on the evening of 29 April 1992, although he did know of his own knowledge that Mr Gersten had not been at a function he was supposed to have attended. On the basis of the information he had acquired from the car thieves and also from other sources, Mr Havens had a belief that Mr Gersten had been at the crack house. He had given Mr Richey to understand what he believed to be the truth. He had said to Mr Richey that, if Mr Gersten said something that was not true, that could be perjury. However, he replied "no" when asked: "And did you tell Mr Richey that, if Mr Gersten were to come into the office and make a statement, that he would have to swear and agree with the evidence that you had gathered regarding his being in a crack house, using crack cocaine, being with a prostitute and other such allegations that had been made, or you would consider that to be a perjurious statement, a lie?". 69 While Mr Havens was giving evidence, Mr Shiffrin, who was appearing for the State Attorney's Office, gave an explanation to Judge Dean of why the State Attorney's Office had set up the Chinese wall. Mr Shiffrin said:- "… the primary purpose was so Mr Band would not be tainted by the immunised testimony of Mr Elswick. . . . If we prosecute them (the car thieves), they could complain that Mr Band was privy to immunised testimony and used (it) in the prosecution of them. Mr Gersten can't complain about that". 70 Mr Havens said that he had not looked at any statement obtained from Claudia Lira or Kenneth Elswick and he was vague about whether their statements were "immunised". He said that he believed that the statement of one of those witnesses was immunised. 71 Mr Havens said in his evidence that, when Mr Band had first been assigned to the case, he had received copies of "our" documents. Mr Havens did not know if the documents supplied to Mr Band had included any immunised statements by Claudia Lira or Kenneth Elswick. 72 In cross-examination by counsel for the State Attorney's Office Mr Havens said that it was common practice in the State Attorney's Office to advise witnesses who were testifying under oath that they were liable to prosecution for perjury, if they testified falsely while under oath, and he said that the warnings given to Mr Gersten were no different from the warnings given to other witnesses. 73 Mr Gregorie was also called as a witness by Mr Sharpstein, counsel for Mr Gersten. 74 Mr Gregorie said that as 21 May 1992 he had had no belief as a prosecutor about what had really happened on the evening of 29 April 1992. At the meeting on 21 May Mr Havens had told Mr Richey what evidence had been gathered by the State Attorney's Office. According to Mr Gregorie, Mr Richey had been trying at the meeting to arrange a plea bargain for Mr Gersten and Mr Gregorie's answer to Mr Richey had been that Mr Gersten should first make a full statement. 75 Mr Gregorie gave evidence that part of what he had said at the meeting to Mr Richey was:- "(He would have to come in and give a truthful statement and) - We have a great deal of information on what happened on that day and, if we are going to accept this plea, he is going to have to give us a truthful statement and we know a great deal about this incident, so he is going to have to be very careful to make sure that what he says is truthful. . . . (or if he doesn't, he can be indicted for perjury)" 76 Mr Gregorie gave some evidence about the Chinese wall. He said:- "I am aware that there are a series of charges that could and probably should be brought against other individuals in this case and because I have given them immunity from the statements that I took from them, I could not charge them; so we have established a process with a prosecutor who knew nothing about my investigation, so that he could prosecute those individuals". A little later in his evidence Mr Gregorie said:- "I gave him (Mr Band) all the testimony, having gone through my file together with the investigators' material, that would not be immunised testimony for any of the prospective defendants in this case". 77 Mr Gregorie said that he had had nothing to do with the prosecution of Elswick and Lira, which was Mr Band's job. Mr Gregorie would not use any statement given by Mr Gersten to Mr Band, because it would be "immunised" for the purposes of Mr Gregorie's investigation of the alleged Gersten offences. 78 Mr Gregorie later said, with reference to the Chinese wall:- "The purpose of it is, so that I am not tainted by the immunised testimony that I can't use, and so that he (Mr Band) is not tainted by the immunised testimony that he can't use….". 79 In cross-examination Mr Gregorie said that what had been said to Mr Richey on 21 May 1992 was similar to the discussions he had had with every other witness or lawyer representing a witness prior to the witness giving sworn testimony and with every person proposing to enter into a plea bargain arrangement under which the person would agree to give sworn testimony. Such persons were routinely told that, so long as they told the truth, nothing would happen to them; but, if they lied, "they would subject themselves to perjury". 80 The parties would appear to have agreed that there was no need for Ms Jacobson to give evidence. 81 After the evidence had been concluded Judge Dean heard addresses from both counsel. After a short recess she gave judgment on the motion. 82 In her judgment her Honour noted that the proceedings before her were a motion by Mr Gersten to disqualify the Dade County State Attorney's Office on the ground of improprieties and apparent improprieties by the Dade County State Attorney's Office in the investigations it was conducting, which were an investigation being handled by Mr Band into the theft of a car and an investigation being handled by Mr Gregorie into the alleged Gersten offences. 83 Her Honour noted that as at January 1993 the State Attorney's Office was not conducting any investigation into alleged perjury. Mr Gersten had not yet given any statement on which any charge of perjury could be based. 84 Her Honour did not accept that the Dade County State Attorney's Office had to be disqualified, simply because it was conducting two investigations, in one of which Mr Gersten was the target and in the other of which he was a complaining witness. 85 Her Honour identified the alleged perjury trap as being "the thrust" of the motion. Her Honour cited United States authority (United States v Chen) that:- "A perjury trap is created when the Government calls a witness before a grand jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury". Mr Band occupied a position analogous to that of a grand jury. 86 Her Honour continued:- "In this particular case the only facts that have been presented to me are that Mr Band is seeking to investigate a grand theft auto, and whether we think that it is necessary or not for the State Attorney's Office to do that, it is within their power to do so, and it has been represented to this Court, as early as last August, that that is the sole purpose of those questions and the Court made it very clear that if at any time questions were asked which were neither relevant nor geared to lead to further discoverable evidence, or which, gentlemen, could in any way be found not to be leading to the furtherance of investigation, those questions should be certified and brought to the Court for the Court's determination. But, there is no indication here that that is what is being done, nor is there any such indication from Mr Richey - solely that Mr Band is attempting to investigate that and he has a right to do that, and proceed accordingly. So, I don't believe at this juncture that we have any problems regarding a perjury trap". 87 Her Honour then cited United States authority (United States v Williams) to the effect that:- "It would be improper prosecutorial misconduct if a prosecutor forced an individual to testify in front of the grand jury, believing that the individual would perjure himself". Her Honour added that:- "Unless the prosecutor knows or believes that when a person walks through that door, they are going to lie… prosecutorial misconduct cannot be considered". 88 Further on in her judgement her Honour said:- "In this particular situation we have Mr Richey requesting a meeting and it is unrefuted from both sides that he requested a meeting in order to see how he could - I believe his words were - make this case go away, and basically what he was told at this meeting is, 'Mr Richey, this is what we want if you wish to make a deal, and if your client lies, he will be charged with perjury,' which is consistent with what this case ( United States v Williams ) provides is not inappropriate for a prosecutor to say. In fact, Mr Richey…. never testified…that Mr Havens said 'I believe your client is going to lie'. He never testified that way". A little later in the judgment her Honour said:- "It is clear to me that there is no one who ever stated or at this juncture believes that Mr Gersten is going to lie under oath". 89 Her Honour said that "I didn't glean in any way, shape or form from the testimony given to me today that anybody is angry, obsessed or in any way out to get anybody". 90 Her Honour made a finding that "that at this juncture… the Chinese wall has been respected and preserved". 91 Her Honour also said:- "It is clear to me that right now all they (the Dade County State Attorney's Office) are seeking is testimony geared to a grand theft auto case". 92 Her Honour denied the motion for disqualification of the Dade County State Attorney's Office. She ordered that Mr Gersten report to Mr Band at the State Attorney's Office the following day to give his sworn testimony regarding the theft of his car. Her Honour added:- "… with the same caveats that this Court provided last August, insofar as - if there is any concern that it is not relevant, not geared to further discoverable evidence, or in any way is not in the furtherance of the investigation at hand, those questions are to be certified and presented to this Court in an orderly fashion". 93 Judge Dean granted a limited stay of her orders. On 19 January 1993 Mr Gersten filed a petition in the Third District Court of Appeal for a review of Judge Dean's orders and the Court of Appeal granted a temporary stay of Judge Dean's orders. Further interim orders were made by the Court of Appeal on 21 January 1993. 94 On the morning of 15 March 1993 the judges of the Court of Appeal denied Mr Gersten's petition for a review of Judge Dean's orders of 14 January 1993 and vacated the interim orders it had made staying Judge Dean's orders. Later the same day Mr Band asked Mr Sharpstein to produce Mr Gersten at Mr Band's office, to give his sworn testimony. 95 At 9.05am on 16 March 1993 Mr Band and Mr Sharpstein attended before Judge Dean. Judge Dean refused an application by Mr Sharpstein for a stay pending the filing of a petition to the Court of Appeal for a re-hearing and made an order that Mr Gersten appear that afternoon at 3 o'clock in the office of the State Attorney to give his statement. Mr Sharpstein objected that that day, 16 March 1993, was an election day in Dade County and Mr Gersten was running for election as a Commissioner of Dade County. Judge Dean replied that that was "why I didn't make him appear this morning". 96 Just after 3 o'clock that afternoon two motions on behalf of Mr Gersten were presented to Judge Dean, being (1) a motion to quash the witness subpoena to Mr Gersten and (2) a motion to disqualify the Dade County State Attorney's Office. The basis of the motion to quash the witness subpoena was an allegation of "selective enforcement", that is that the State Attorney's Office was trying to exercise its powers against Mr Gersten, as a member of a class consisting of car owners whose cars have been stolen but who do not desire that the persons who have stolen their cars should be prosecuted, "in an unequal, arbitrary fashion". The basis of the motion to disqualify the Dade County State Attorney's Office was that the newly appointed State Attorney Ms Rundle, who had succeeded Ms Reno, had, before her appointment, supported a woman named Conchita Bretos, as a candidate for election as a Dade County Commissioner in a particular district, that Mr Gersten had become a candidate for election as a Commissioner in the same electoral district and that an election pamphlet for Ms Bretos has been circulated in which Ms Rundle was named as a supporter of Ms Bretos. Judge Dean reserved overnight on the two motions. 97 On the following day 17 March 1993 Judge Dean delivered a judgment in which she dismissed both motions. Her Honour held that Mr Gersten had not proved the conditions necessary to be proved for a finding that the Dade County State Attorney's Office had engaged in "selective enforcement". Her Honour found that Ms Rundle's support of Ms Bretos had been very limited and had been given before Mr Gersten became a candidate in the same electoral district. Judge Dean refused applications by Mr Sharpstein to argue further the motion to quash the witness subpoena and for a stay of her orders and she ordered Mr Gersten to appear at the State Attorney's Office at 1 o'clock that afternoon to give his statement. 98 Shortly after 1 o'clock that afternoon Mr Gersten attended at the State Attorney's Office, was called as a witness and was sworn. 99 Mr Band said:- "We are investigating the taking, whether or not it was a theft or whether or not it was a robbery. We are interested in taking a prefile statement of Mr Gersten. To that end, I plan on asking him questions concerning the events surrounding the 29th of April, 1992". 100 Mr Sharpstein on behalf of Mr Gersten tendered a letter dated 16 March 1993 from Mr Gersten to Ms Rundle, in which Mr Gersten stated his desire that the persons who had allegedly stolen his car not be prosecuted. 101 Mr Band informed Mr Gersten that he would have immunity "as to answers you give to questions I ask… insofar as they relate to the events surrounding 29 April 1992" and that "the only possible penalty you may incur would be perjury". 102 Mr Band then began the examination of Mr Gersten. Mr Gersten answered a number of questions but when asked a number of other questions he said:-"I respectfully decline to answer, on the advice of counsel" or words to a similar effect. Mr Sharpstein submitted that some of the questions were irrelevant to the investigation Mr Band was conducting. Mr Band, although he had a number of other questions prepared which he had not yet asked, decided to go back before Judge Dean. 103 Counsel appeared before Judge Dean again at 1.40pm. Mr Band and Mr Sharpstein reported to Judge Dean what had happened during the proceedings in the State Attorney's Office. Judge Dean said:- "Okay. So we are back to August and I believe in fact I did rule that as long as he appeared to answer questions, as you went through the questions he could answer those he felt were appropriate. He could raise any objections that he wanted to and then I would rule accordingly." 104 Judge Dean held that the statements Mr Gersten had made, that he declined to answer on the advice of counsel, did not amount to the taking of an objection. Her Honour was informed that, in the case of some questions, Mr Sharpstein had made the objection that the questions was irrelevant. 105 A little later on in the discussion between counsel and the bench her Honour said:- "Perhaps we have to go through the questions asked thus far and I can share with you which ones I don't think are particularly relevant and maybe we can get through the ground floor here and at least get some of the initial questions asked". 106 Thereupon the court reporter who had recorded the proceedings in the State Attorney's Office read aloud to Judge Dean the record of the proceedings in the State Attorney's Office. The reporter read questions by Mr Band and responsive answers by Mr Gersten about his current address and how long he had lived at that address. Mr Gersten had then been asked by Mr Band:- "Where did you live prior to that?" and Mr Gersten had replied "I respectfully decline to respond to your question upon the advice of counsel". 107 Before Judge Dean Mr Sharpstein took the objection that this question was irrelevant. Mr Shiffrin said:- "As a general rule, when witnesses appear at a pre-file statement we like to learn something about witnesses. So if this witness is called for trial, we don't probe into every facet but we like to probe into where they lived before, some of the events leading up to where he is now, just so we are not surprised at the time of trial". 108 Judge Dean ordered Mr Gersten to answer the question. 109 The next question which Mr Gersten had declined to answer was "Have you shared that home (that is Mr Gersten's current home) with anyone…?" An objection was taken to this question on the ground of relevance. Mr Shiffrin said:- "Your Honour, it is important for us to know who else was there that evening". Judge Dean said:- "Okay. Then you are going to have to rephrase the question. The objection is sustained as to the question as asked". 110 Over objections that the questions were irrelevant, Judge Dean directed Mr Gersten to answer questions "when was it you moved into that house (the current house)?"; "are you employed?", a question which Mr Gersten had in fact answered; "what type of (legal) practice do you maintain?"; "on 29 April 1992 where were you employed?"; "on 29 April 1992… do you remember that day?" 111 The reporter than read a question "do you keep a personal diary?", which Mr Gersten had said he declined to answer on the advice of counsel. Judge Dean enquired of Mr Shiffrin what was the relevance of that question. After hearing Mr Shiffrin's submission, Judge Dean ruled "I am not going to require him to answer that question". 112 On the other hand, her Honour directed Mr Gersten to answer a question "do you keep any records that would help you recall the events of April 29, 1992?" 113 The next question read by the reporter was "have you had any conversation with anyone concerning the events of April 29, 1992?" which Mr Gersten had said he declined to answer on the advice of counsel. Judge Dean asked Mr Shiffrin what was the point of the question. Mr Shiffrin replied that "it is important for the State to know whether a witness… has told anyone something consistent or inconsistent with what they are about to tell us". Judge Dean ruled that Mr Gersten did not have to answer that question. 114 The next question read by the reporter was "do you have any memory problems?" Judge Dean directed that Mr Band "rephrase" the question. 115 Judge Dean sustained an objection to a question "as phrased" - "do you maintain a calendar of events that is either used for personal or for political or for your legal business, which identify where you were on a specific date?" and directed that the question be rephrased. 116 Judge Dean sustained an objection to a question "on 29 April, 1992 do you recall who you had breakfast with?", after she had inquired at what time of the day it was alleged that the car had been stolen and had been told by Mr Shiffrin that it was some time in the early evening. 117 However, her Honour directed that Mr Gersten answer a question:- "On April 29, 1992 do you recall who you had lunch with?" Her Honour directed that Mr Gersten answer each of a series of questions, asking him respectively where he had been at 4 o'clock, 5 o'clock, 6 o'clock. 7 o'clock, 8 o'clock and 9 o'clock on 29 April 1992. 118 After inquiring what was the latest time at which Mr Gersten's car could have been stolen, Judge Dean directed that Mr Gersten did not have to answer a question as to where he was at 10 o'clock on the night of 29 April 1992. 119 Judge Dean directed that Mr Gersten answer questions, when he had first noticed that his car was missing, what time he had arrived home on 29 April 1992 and how he had arrived home on 29 April 1992. 120 Her Honour then directed counsel to return to the State Attorney's Office and resume the examination of Mr Gersten. She expressed a preference that Mr Band ask all the questions he intended to ask, before any further referral of the matter back to her. 121 After counsel had returned to the State Attorney's Office and Mr Band had resumed examining Mr Gersten, Mr Gersten declined to answer questions, where he had been at 4 o'clock, between 5 o'clock and 6 o'clock, between 6 o'clock and 7 o'clock, between 7 o'clock and 8 o'clock, between 8 o'clock and 9 o'clock and between 9 o'clock and 10 o'clock, on 29 April 1992. He declined to answer questions when he had arrived home on 29 April 1992, how he had arrived home and whether he had arrived home. 122 In answer to the question "is it your intention to avoid answering any questions I may pose concerning the theft or taking of that automobile, other than the answer you have just given, that is, 'I did not give permission to anyone to take or use or possess my vehicle on 29 April 1992?" Mr Gersten, after Mr Sharpstein had objected to the form of the question, replied "upon advice of counsel, I decline to respond to the question and refer you to my previous answers relevant to those questions". 123 Mr Band saw no point in continuing to ask Mr Gersten questions and proposed that counsel return to Judge Dean's court. Judge Dean was informed of what had happened at the State Attorney's Office. Mr Shiffrin said:- "Your Honour, the State has filed… a suggestion for Rule to Show Cause be issued against the witness to show cause why he should not be held in contempt of court". 124 Judge Dean said:- "Mr Gersten, the questions that the State seeks to ask of you are no different than any questions, to this Court's mind, that must be asked of any other witness to get background information. I am therefore signing this rule to show cause". Her Honour continued:- "Gentlemen, under a normal circumstance there is always a ten day lapse because it is indirect contempt and there is normally ten days when a hearing is set. It strikes me, since we are all present, we can set a far more expeditious time for that to occur". 125 In further exchanges between counsel and the bench her Honour said inter alia:- "This whole thing is in the nature of a civil contempt proceeding". . . . "..this is not a criminal contempt matter where we are trying to punish". . . . "I do have to give the defendant an opportunity in a contempt matter to present evidence to me why he should not be held in contempt of court". . . . "I am not here to punish the man for some action he took before the Court. I am here to enforce a court order which was to answer questions. I am going to order this hearing take place tomorrow at 1.30, at which time Mr Gersten will show cause why he should not be held in civil contempt of this court". 126 The following day 18 March 1993 the parties appeared before Judge Dean. Her Honour dismissed a motion on behalf of Mr Gersten to dismiss the rule to show cause and also dismissed a motion for a continuance. 127 The motion for a continuance was based on the grounds that a finding of contempt of court against Mr Gersten and any sanction imposed on him for contempt of court would prevent Mr Gersten from participating in an investigation of alleged voter fraud in the election for Dade County Commissioners in which Mr Gersten had been a candidate and had been defeated and would prevent him from taking part in any fresh election and on the grounds that Mr Gersten needed further time to collect records relating to grand theft of automobiles in Dade County. 128 The motion to dismiss the rule to show cause was based on the same grounds as the motion for a continuance and on other grounds which, it was acknowledged, had previously been argued before Judge Dean. 129 In dismissing both motions Judge Dean said:- "I read your Motion To Dismiss and your Motion For Continuance and I must agree with Mr Shiffrin, that this motion essentially raises grounds that I have already previously ruled upon, and therefore, I am denying your Motion To Dismiss this Rule To Show Cause; and again, I would say we are not here for punishment, which is criminal contempt. We are here on a civil contempt issue in order to see that lawful court orders are complied with. With regard to your Motion For Continuance, again, I feel it appropriate to deny this motion. Ever since August of last year we have been doing nothing but discussing that the State would ultimately be seeking that Mr Gersten be held in contempt, if he did not proceed to answer questions. In fact, all the points of all the motions that were filed was that they were always filed on the eve of questioning, that he didn't go to answer any questions; therefore, the issue of whether a Rule To Show Cause was issued, was never ripe, because he never appeared and therefore never refused to answer, and therefore was never potentially in contempt. It did ripen yesterday and we have always known that we were going to come to this point. It is true yesterday I mentioned that we do have a usual ten day process. The ten day process that we normally have is because it takes a couple of days to process it through the clerk's office, to get the rule served it takes about five days and then it takes another few days to get it filed as a matter of court record. As a matter of convenience for the clerk's office the courts have set Rules To Show Cause off ten days, but this is not a similar kind of circumstance where the individual was unaware that this was going to be an issue that was going to be discussed, and in this case the individual not only knew about it since August of last year, but in fact was present in court yesterday and was made fully aware of it on Monday, Tuesday, and as I said, yesterday, as to the fact that we were going to ultimately be coming to this point. So, under those circumstances, given particularly in view of some of the grounds that you have raised as to what you want to show on his behalf, I see no reason for a continuance and that will be denied as well, which now brings us to the point of the contempt hearing". 130 Mr Sharpstein made submissions on behalf of Mr Gersten. He said inter alia:- "Mr Gersten has unequivocally stated his position that he believes the prosecutors are in bad faith, there is a perjury trap, that there is conflicts of this particular State Attorney's Office. He refused to cooperate with them for those reasons". 131 In response to a submission by Mr Sharpstein that the proceedings were not "coercive" but "punitive", Judge Dean said:- "I appreciate the fact that you believe these (proceedings) are punitive in nature, but that has been your theme all along. It is this Judge's intent to have this man comply with court orders. That is what I am seeking. I am not interested in punishing him. I am interested in seeing to it that my orders are complied with". 132 On behalf of the State Attorney's Office Mr Band submitted that Mr Gersten had been served with a subpoena, that after many months he had finally appeared at the Office of the State Attorney and that he had then refused to answer questions which Judge Dean had ordered that he should answer. 133 Her Honour held that the State had discharged "its initial burden of showing why Mr Gersten should be required to show cause, why he should not be held in contempt of court" and she called upon Mr Sharpstein to present any case on behalf of Mr Gersten. Mr Sharpstein said that he would make a brief address and then call evidence. 134 In his address Mr Sharpstein referred again to Mr Gersten's unwillingness as the victim that the car thieves should be prosecuted, to leaks to the media, to Mr Gersten's belief that the State Attorney's Office was not acting in good faith, to his belief that the State Attorney's Office "is on some irrational, outrageous vendetta and invidious selective enforcement of a subpoena", to the perjury trap and to the "coddling" of Lira and Elswick so that they could be used as witnesses against Mr Gersten. 135 In relation to the alleged lack of good faith and the perjury trap, Mr Sharpstein said:- "They (the State Attorney's Office) just can't use his (Mr Gersten's) statement. They could take this legal pad and a half (of Mr Band's) and go through 40,000 things and have one witness they believed could prove otherwise and prosecute him for perjury, which is what I believe they intend to do". 136 Mr Sharpstein asked the rhetorical question "why won't he just come forward and tell the truth?" and answered his own question by saying "because they told him they don't believe him, ahead of time". 137 Mr Sharpstein then called his witnesses. One witness was Mr Michael Strozer, the Deputy Chief of the Felony Screening Unit in the State Attorney's Office. Mr Strozer gave evidence generally to the effect that a victim of a non-violent crime who did not wish to prosecute was not forced to prosecute by the State Attorney's Office. 138 Another witness was Mr Riley, an investigator hired by Mr Richey's firm. Objection was successfully taken to evidence sought to be adduced from Mr Riley about Elswick soliciting the bribe to change his evidence and about the alleged voter fraud at the election of Commissioners, on the grounds that such evidence would be irrelevant to the issue now before the court. 139 Mr Sharpstein proposed to call Mr David Leahy, the supervisor of elections in Dade County, to give evidence of possible voter fraud at the recent election. The State Attorney's Office was prepared to concede that "there may be a basis for contesting the (validity of the) election". 140 Mr Sharpstein told Judge Dean that he relied on all the arguments which had previously been put on the issues of bad faith, the perjury trap, whether the State Attorney's Office should be disqualified and the Chinese wall, as reasons why Mr Gersten should not be held to be in contempt of court. 141 Mr Gersten then made a sworn narrative statement to the court. I accept his evidence given before me that he made the statement impromptu and that he was in a highly emotional state when he made his statement. He told the Court that he was not contemptuous of the Court; his grandfather, father, uncle and brother had all been judges. He said, "I'm going to ramble a little bit, judge, but I can't help it" and he proceeded to give a long narrative of what he said had happened. 142 One of the themes of Mr Gersten's statement was that he had been treated differently, that is more severely, than other (alleged) first offenders. 143 In regard to the alleged perjury trap he said inter alia:- "Let's go over to what options they gave me over here". . . . "But, they have told me through my attorney what they expect me to tell them.. and I believe my attorney". . . . "They say come in and tell the truth according to the State Attorney, the State Attorney's truth, okay? 'And we are not going to charge you with perjury'". "I will tell you what they are asking me to do in return for not charging me with perjury. Admit that I frolicked in pig dung with crack whores. Nice admission? Which it would be secret, but would be on the front page of the - front page of the Miami Herald the next day, 'Gersten frolics with crack whores in pig dung'". . . . "So I come in and I talk and I tell them the truth according to Gersten. Here is what you get for it. Gersten is charged with perjury, and every time I tell them something that they can get one witness and a corroborating circumstance, or two witnesses, either one or two…" . . . "But, there will be two or three hundred counts, because he (Mr Band) has a hundred pages of questions he wants to ask me…" 144 At points in his statement Mr Gersten complimented the judge. He said:- "We are not political allies, but, you know, they don't know that. So, you have to appear to be fair and impartial and treat me like everybody else - and which you have treated me more than fair and impartially, Judge. You have. You're brilliant, actually; a very, very fine judge". 145 After the conclusion of Mr Gersten's statement, Mr Sharpstein, Mr Gersten himself and Mr Band addressed the court. 146 After the addresses had finished, Judge Dean gave Mr Gersten a last opportunity to comply with the orders Judge Dean had made. The transcript records:- "The Court: Mr Gersten, I am going to ask you: Are you going to comply with my orders of yesterday? Mr Gersten: Respectfully, Your Honour, I believe that your orders are asking me to commit - not literal, but figurative - suicide. To answer their questions would be to charge me with perjury, which is a major crime and I would end up in jail and I can't do it, Judge. The Court: So the answer is 'no'? Mr Gersten: Yes, ma'am". 147 After a short recess Judge Dean delivered a judgment. In this judgment she made a number of findings. These findings, in the same or almost the same language, are also stated in the formal order of contempt dated 18 March and it is convenient to set out the terms of the formal order of contempt in full. The order provided:- "THIS CAUSE came on to be heard on a request from the Dade County State Attorney's Office to hold Mr Joseph M Gersten in contempt of Court and the Court having heard argument, taken testimony, and being otherwise fully advised in the premises makes the following findings: 1. In or about August of 1992, a subpoena was issued and served on Joseph M Gersten in order to secure his presence for a pre-filing statement to assist the Office of the State Attorney in its investigation of an alleged grand theft of his Mercedes Benz. 2. In or about August of 1992, Mr Gersten requested that this subpoena be quashed before Judge Phillip Knight and again before Judge Alan Schwartz, both of whom denied this relief. A similar motion was filed before this court in August of 1992 and Mr Gersten was ordered to appear and answer the questions of the Assistant State Attorney, Mr Michael Band. This court agreed to review all questions posed for relevancy, materiality, and whether they would lead to further discoverable evidence. While this relief was unprecedented for the taking of a pre-filing statement by the State, there has been no higher court ruling overturning this decision and it presently stands as law of the case. Normally, the how, when, why and who of prosecution are always within the decision making power of the State Attorney's Office and are so in this instance as well. 3. Just before Mr Gersten was to appear in the Office of the State Attorney to meet with Mr Band, another Motion to Quash was filed with this court and a full hearing was had, wherein the court denied the relief sought by Mr Gersten. A Petition for Certiorari was filed and denied in December of 1992. 4. Thereafter, Mr Gersten was once again ordered to appear to give his statement to the Office of the State Attorney. Again, just prior to his required appearance, Mr Gersten filed a Motion to Disqualify the Office of the State Attorney with this court. After a full evidentiary hearing, the relief sought by Mr Gersten was denied. A Petition for Certiorari was filed and denied on March 16, 1993. 5. Thereafter, Mr Gersten was once again ordered to appear to give his statement in the Office of the State Attorney and again just prior to his appearance on that date another Motion to Quash the Subpoena and a second Motion to Disqualify the Office of the State Attorney was filed. The Motion to Quash the Subpoena was denied, not only because it raised matters that could have been raised in August of 1992 and January of 1993, but additionally this court found that the assertions contained in that motion lacked merit and failed to even allege the threshold factual basis for such relief. Further, the second Motion to Disqualify the Office of the State Attorney was denied, as failing to allege the necessary facts to show that such relief was warranted. Mr Gersten was thereafter ordered to appear to give his statement. 6. In the afternoon of March 17, 1993, Mr Gersten appeared in the office of Assistant State Attorney, Michael Band, and answered certain questions and refused to answer others. Mr Gersten and his attorney, and the Assistant State Attorney appeared in this court and sought direction as to which questions needed to be answered by Mr Gersten. After hearing the entire proceeding, the court ordered Mr Gersten to answer certain questions as posed by Mr Band. 7. It is important to note that at the pre-filing conference, which is what is sought in this case from Mr Gersten, it is usual for the Assistant State Attorney not only to seek facts which will assist them in the prosecution of their cases, but additionally which will aid them in determining what kind of a witness the victim will be during trial and whether they will fare well under the difficult experience of cross-examination. This is particularly true in third degree felony matters where the mass of cases in that category that are filed require that this type of evaluation be done early on in a case, so as to make efficient use of manpower. 8. Mr Gersten has refused to comply with this Court's order to answer Mr Band's questions. It is certainly within his power to comply with the orders entered. It is to be noted that Mr Gersten sought relief in this court and sought the rulings of this court but has steadfastly refused to comply. 9. The issue herein is whether an individual who is the subject of a lawful and properly served subpoena who seeks protection from that subpoena and where such protection is denied and is ordered to answer questions is in contempt of the court when he refuses to answer. This question must be answered in the affirmative. Therefore, on the evidence presented it is adjudged that Joseph M Gersten is in contempt of this court for failure to answer the questions posed by the Office of the State Attorney and ordered to be answered by this court. Parenthetically, there is the issue regarding a victim's right to dictate how the investigation of a crime is to be conducted. No victim can do this, but at this juncture it is an issue secondary to Mr Gersten's refusal to comply with lawful court orders. 10. Obviously the next issue for this court is the type of action appropriate to obtain compliance by Mr Gersten. 11. It is not the place of a judge to determine whether the Office of the State Attorney should prosecute a case in this jurisdiction. That is solely within the province of the Office of the State Attorney. It is only the judge's job to determine whether the laws have been violated and if so, what an appropriate sanction should be. This order does not address the propriety of any actions except those of Mr Joseph M Gersten who, like any citizen, came into this court for relief, sought orders which were entered and has now plainly refused to obey. No one of us can ignore our laws which we have all agreed to live by as a nation for more than 200 years. 12. It is therefore the decision of this court that Mr Gersten shall be confined to the Dade County Jail beginning this date, unless he purges himself in the manner specified herein. 13. Mr Gersten may purge himself of his contempt by the following: a. Answering all questions previously ordered by this court to be answered in the office of Mr Michael Band. b. By continuing his pre-filing statement in the Office of the State Attorney under the terms and conditions previously ordered in August of 1992. 14. The Court finds Mr Joseph M Gersten has the actual and present ability to comply with the purge provisions of this order. The keys to Mr Gersten's release from confinement are in his own keeping. 15. This order will be reviewed in thirty days to determine if there is a reasonable likelihood that Mr Gersten will comply, if he has not done so within that time." 148 Judge Dean refused an application for an order that would have permitted Mr Gersten to be released pending an appeal and directed that Mr Gersten surrender himself the following morning. 149 Mr Gersten went into custody in a Dade County Correctional Facility on 19 March. He spent some time in the "GTK" Correctional Facility, where he was placed in a maximum security unit with violent criminals. While in custody Mr Gersten suffered from high blood pressure, due to stress resulting from his incarceration. Because of the condition of his health he spent periods in the Jackson County Hospital, either in a wing for prisoners or in a private room, and in the Mount Sinai Hospital. 150 Between 19 March and 29 March Mr Gersten's matter came before Judge Dean on some occasion before 26 March, on 26 March and on 29 March. It would seem that on the first occasion counsel for the parties approached Judge Dean. On these occasions some evidence was given by medical practitioners, either directly or by hearsay, and there was argument about Mr Gersten's medical condition, whether he was refusing medication, whether he was being manipulative, whether he was transacting business as a Commissioner of Dade County while in prison or in hospital, whether he could receive appropriate treatment in the wing for prisoners in the Jackson County Hospital and whether he could be moved without endangering his health. Judge Dean expressed the view that Mr Gersten had been ordered to be imprisoned until he purged his contempt and should be treated like any other prisoner. Judge Dean decided to extend the time for a status report, from thirty days from 18 March, to 21 May 1993. At the conclusion of the hearing on 29 March 1993 Judge Dean said:- "I'm going to ask that Corrections and the State… as soon as he can be transferred, he should be transferred back to wherever the physicians think is appropriate.. I don't know that I should be involved in what Corrections is doing. That has never been my job. I was a little amazed they needed me this time". 151 On 1 April 1993 Mr Gersten's lawyers filed an emergency motion to review order denying appeal bond and for order admitting appellant to bond pending appeal and a memorandum of law in support thereof. 152 On 12 April 1993 the District Court of Appeal ordered:- "Appellant Joseph Gersten's April 1, 1993 emergency motion to review order denying appeal bond and for order admitting appellant to bond pending appeal shall be treated as a motion for stay of the imposition of sanctions enforcing the order of contempt pending resolution of the appeal in this Court. The motion is granted, and appellant shall be released forthwith. Incarceration of appellant Gersten shall be stayed through the duration of this appeal and pending further order of this Court. This order is conditioned upon appellant Gersten's strict compliance with the accelerated briefing schedule for this appeal…" The Court of Appeal then set out a briefing schedule. 153 Mr Gersten was released on 12 April 1993 and has not since been in custody. 154 Mr Gersten's appellant's brief on the appeal to the Third District Court of Appeal was filed on or about 27 April 1993. In the brief the issues on the appeal were stated as follows:- " Issues of Appeal 1. Whether the trial court erred in adjudicating appellant in civil contempt where a subpoena was issued by a state attorney who had a patent conflict of interest in that the state attorney was a public supporter of appellant's main opponent in the upcoming election for metro commission. 11. Whether the trial court erred in adjudicating appellant in contempt of court where there was substantial evidence of an attempt by the state to set up a perjury trap against appellant. 111. Whether the trial court erred in adjudicating appellant in civil contempt where there was substantial evidence that the State used its subpoena power in a selective and discriminatory manner so as to violate appellant's procedural and substantive due process rights under the Florida and Federal Constitutions. IV. Whether the trial court erred in failing to provide appellant with reasonable notice of the show cause hearing." 155 In regard to the alleged perjury trap it was submitted in the appellant's brief:- "Further basis for reversal of the trial court's order of contempt lies in the State's attempt to set up 'perjury trap' against Appellant Gersten. It is well-recognised in Florida that a perjury trap is a valid basis for reversal of a contempt conviction. Here, there was ample evidence in the proceedings below of the State's desire to obtain just such a perjury conviction: (1) the State had no other prosecutorial offence with which to charge Gersten; (2) the State did not need Gersten's statement to prosecute the suspects; (3) the questions posed of Gersten during the sworn statement clearly indicate improper motives on the part of the State; and (4) the testimony presented in the proceedings below revealed that the prosecutors made it known that if Gersten deviated in any way from what the prosecutors believed to be the truth, he would be charged with perjury. Based upon the foregoing, Gersten was clearly justified in refusing to answer the subpoena issued by the State, and accordingly, the trial court's order of contempt is subject to reversal". 156 The arguments in support of Mr Gersten on the perjury trap issue were developed at length at pp20-33 of the brief. Submissions were made about the concept of the perjury trap; the weaknesses in the prosecution case against Mr Gersten for the alleged Gersten offences; the lenient way in which the State Attorney's Office had dealt with Lira and Elswick, the persons who the State Attorney's Office claimed it was investigating for the theft of Mr Gersten's car; the number and width of the questions which Mr Band wanted to ask Mr Gersten; and the evidence given by Mr Richey, Mr Havens and Mr Gregorie on 14 January 1993 about what had been said at the meeting on 21 May 1992. The choices which it was alleged Mr Gersten had had were identified as follows:- "Further, here, Appellant Gersten was given three choices. Were he to testify to the State's version of 'the truth', and admit his involvement with a prostitute, he would immediately subject himself to a misdemeanour or possibly even a felony prosecution for submitting a false police report. Were he to testify pursuant to the subpoena consistently with his police report that he was not involved with the prostitute and drug activities, he would immediately have been subjected to a perjury prosecution based upon the State witnesses' sworn statement. The last alternative available to Appellant Gersten was the one he ultimately was forced to exercise; that is, the decision not to answer the State's questions. The result of this decision ultimately manifested itself in the lower court's finding of contempt. Thus, the prosecution placed Gersten in the untenable position that whatever option he chose, he would, in essence, convict himself of a crime". 157 On 2 June 1993 the Court of Appeal published an order affirming Judge Dean's order of 18 March 1993. The substantive parts of the order were:- "Decision filed June 2, 1993 Appeal of a non-final order from the Circuit Court for Dade County; Amy N Dean, Judge. . . . Per Curiam. Affirmed. . . . Not final until time expires to file rehearing motion and, if filed, disposed of". 158 No judgment by the Court of Appeal was published. 159 On 17 June 1993 a motion for a rehearing was filed. On 25 June 1993 the Court of Appeal made an order "that appellant's motion filed June 17 1993 for rehearing is hereby denied". 160 On 13 July 1993 the Court of Appeal issued its "mandate" as follows:- "This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion; JUNE 2, 1993 YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida". 161 In the meantime, before the State Court issued its mandate, Mr Gersten had on 25 June 1993 brought a complaint for injunctive relief in a Federal Court, the United States District Court for the Southern District of Florida. The prayers for relief in the complaint included claims for a temporary injunction and a permanent injunction restraining the State Attorney "from further pursuing her petition for rule to show cause and plaintiff's incarceration deriving therefrom" and an order of the Court vacating the contempt order because of "the State's bad faith, unethical conduct, conflicts of interest as well as the State's selective, vindictive and demagogic prosecution" of Mr Gersten. 162 At an emergency hearing on 30 June 1993 Judge King of the United States District Court, before whom Mr Gersten's complaint had come, without making any order, obtained an assurance from the State Attorney's Office that the State Attorney would not seek to enforce the contempt order and would allow Mr Gersten to remain at liberty, until Judge King had had an opportunity to fully consider Mr Gersten's complaint. Accordingly, Mr Gersten was not re-incarcerated upon the State Court of Appeal issuing its mandate on 13 July 1993. 163 On 22 July 1993 the State Attorney filed a motion to dismiss Mr Gersten's complaint. A hearing took place on 6 August 1993. On 9 August 1993 Mr Gersten's lawyers filed a memorandum in opposition to the State Attorney's motion to dismiss. On 14 September 1993 Judge King gave his decision, granting the State Attorney's motion to dismiss. 164 Judge King delivered a carefully reasoned judgment. His Honour noted that the basis of the proceedings in the Federal Court was that the State Attorney had allegedly acted in bad faith, resulting in breaches of Mr Gersten's constitutional rights under the first and fourteenth amendments to the United States Constitution. Judge King was prepared to accept as true the facts alleged in Mr Gersten's complaint, for the purpose of ruling on the State Attorney's motion to dismiss. Judge King noted that Mr Gersten's allegations that he was being prosecuted in bad faith or was threatened with a prosecution in bad faith rested on two grounds (a) that the State Attorney had set a perjury trap for Mr Gersten (b) that the State Attorney's attempt to have Mr Gersten held in contempt constituted a bad faith prosecution. 165 I will quote most of what Judge King said on the subject of a perjury trap. His Honour said:- "The argument that the State has set a perjury trap that would entitle Plaintiff to injunctive relief is flawed. A perjury trap 'is created when the government calls a witness before the grand jury for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury'. United States v Chen , 933 F.2d 793, 796 (9th Cir. 1991) (citation omitted). For a perjury trap to exist, the government must be using its subpoena power to secure the perjury indictment 'on matters which are neither material nor germane to a legitimate ongoing investigation of the grand jury.' Id . (citation omitted); see also Brown v United States , 245 F.2d 549, 555 (8th Cir. 1957) (holding that a perjury trap existed where the purpose of the prosecutor was solely to elicit perjured testimony on matters that had 'no tendency to support any possible action of the grand jury within its competency'). Thus, when the State is 'attempting to obtain useful information in furtherance of its investigation', or 'conducting a legitimate investigation into crimes which have in fact taken place within its jurisdiction', the perjury trap doctrine is, by definition, inapplicable.' Chen , 933 F.2d at 797 (citations omitted). In the instant case, then, there are two critical issues; Are the questions being asked by the State designed to elicit useful information in furtherance of a legitimate investigation into local crimes? And can Plaintiff rely upon this argument at this juncture? Plaintiff may be able to make a prima facie (case)showing that the questions submitted by the State are not, in reality, intended to further the legitimate investigation to which the State claims they are directed - namely, the criminal case against the two individuals accused of stealing Plaintiff's automobile. Nonetheless, Plaintiff is unable to petition for injunctive relief at this time. For this Court to grant injunctive relief under normal equitable standards, the threat of injury must be actual and imminent, not remote and speculative. Here, the injury must be that of prosecution for perjury and that can only be actual and imminent, after Plaintiff has testified. Under the Younger standards, Plaintiff must similarly show a bad-faith prosecution, or at least the threat of one, by the State. Again, none can be shown, or indeed is even possible, until after Plaintiff has testified. Bad faith by the State in the investigatory process can only be challenged in federal court when that bad faith manifests itself in an imminent prosecution. Plaintiff contends that the threat of prosecution for perjury is actual and imminent because the State has stated it will institute such a prosecution if, when Plaintiff testifies, his version of events related to the theft of his automobile differs from that the State believes to be true. Still, this Court cannot know with certainty to what Plaintiff will testify when he is questioned under oath; presumably, he will tell the truth and could prevail on the merits in any subsequent perjury trial. At such a trial, he could also assert a perjury-trap defence. The Ninth Circuit was faced with this same issue ( after the witness had already testified) and held that the government's anticipation that a witness would commit perjury was insufficient to satisfy the requirements of the perjury trap doctrine. In Chen , the witness argued that the government had anticipated he would commit perjury because he had lied to the government in informal interviews prior to his grand jury testimony. 933 F.2d at 798. The court held that although the government might have anticipated the witness would lie, the government surely also recognised that the witness might testify truthfully. Quoting the Supreme Court, the Eleventh Circuit stated that when a witness 'has been placed under a solemn oath to tell the truth, many witnesses feel obliged to do just that'. Id (quoting United States v Washington , 431 U.S. 181, 188 (1977)). Thus, it is clear that if the questions submitted by the State are intended to further a legitimate investigation, then the fact that the State believes the witness has lied in previous statements and may well do so under oath is insufficient to establish the existence of a perjury trap. Of course, this begs the question whether the questions submitted by the State in this case are material and germane to a legitimate on-going investigation, but this is an argument Plaintiff was free to advance in the state court contempt hearing and will be free to advance again if he faces an imminent threat of prosecution after he has testified". 166 Accordingly, his Honour, without deciding whether the questions Mr Band wished to ask were in furtherance of a legitimate investigation, refused to grant an injunction, on the grounds that an injunction should not be granted unless the threat of a prosecution for perjury was actual and imminent, and in the present case a threat of a prosecution for perjury could not be actual and imminent until after Mr Gersten had testified (which he had not yet done). 167 Judge King further held that he should not intervene on the grounds that there was a prosecution in bad faith, because it had not been established that Mr Gersten had been unable in the State Court contempt proceedings to fairly pursue any Federal claims he might have had. In this part of his judgment Judge King referred to what the Supreme Court of the United States had said in Juidice v Vail 430 U.S 327 (1977) that judicial orders must be followed by individuals "however improvidently (those orders were) made, even if it may seem certain that the court acted in granting them under misapprehension or mistake" (at p336 n12). 168 On 15 September 1993, following the handing down of Judge King's judgment, Mr Band informed Mr Gomez, a lawyer then acting for Mr Gersten, that Mr Gersten should appear immediately for re-incarceration. 169 A motion for a stay of Judge King's judgment pending an appeal to a Federal Appeal Court was denied on 17 September 1993 by another Federal District Court judge, Judge Marcus. 170 On 30 September 1993 the United States Court of Appeal for the Eleventh Circuit denied a motion for a stay pending the hearing of an appeal from Judge King's decision and an alternative motion that Mr Gersten be released pending the hearing of an appeal. 171 An appeal was brought from Judge King's decision. On 15 May 1995 the United States Court of Appeals for the Eleventh Circuit affirmed Judge King's decision, without giving reasons. 172 On 1 October 1993 a petition by Mr Gersten for a writ of certiorari was brought to the District Court of Appeal of the State of Florida. This petition was denied. 173 On 20 February 1996 the Supreme Court of the United States denied a petition for certiorari by Mr Gersten against the decision of the federal Court of Appeals. Proceedings in Relation to the Enforcement of the Contempt Order 174 Mr Gersten was not in the United States, when Judge King delivered his judgment on 14 September 1993. In August 1993 he had gone to Hawaii on business. From Hawaii he travelled to Australia, entering Australia on 6 September 1993. Mr Gersten has not since returned to the United States and he said in evidence before me that he had no intention of returning to the United States. 175 After Judge King delivered his judgment of 14 September 1993, the State Attorney took the position that, as Mr Gersten had failed in his challenges to the contempt order of 18 March 1993 and had not purged his contempt, he should be re-incarcerated, until he purged his contempt by complying with the order. 176 On 23 September 1993 Judge Dean of her own motion recused herself, that is disqualified herself, from any further consideration of Mr Gersten's case. In the original order of recusal Judge Dean gave no reason for recusing herself. However, in an amended order she gave a reason having nothing to do with Mr Gersten, that a relative of hers had been arrested on 13 August 1993 for an alleged felony and Judge Dean considered it inappropriate that she should preside over any matters in which the State Attorney was a party, while the prosecution of her relative was pending. 177 Mr Gersten's matter was assigned to Judge Joel Brown and came before him on a number of occasions. The only record of what happened on some of these occasions consists of handwritten entries in a column headed "clerk's minutes" in court records of Mr Gersten's case. I infer that the handwritten entries were made by a clerk for the court or for Judge Brown. The handwritten entries for 20 September 1993 include "The Defendant appear 9/24/93". The handwritten entries for 24 September 1993 read in part:- "The court ordered the defendant to surrender at Dade Co Jail 10/4/93 (that is 4 October 1993) at 9:00am". 178 In argument in court on 1 October 1993 before Judge Brown Mr Gomez, counsel for Mr Gersten, said:- "Your Honour has required him to appear Monday (4 October 1993) at 9.00 to surrender". 179 Mr Gersten's lawyers filed a petition for re-consideration of all orders made by Judge Dean and a further motion to disqualify the Dade County State Attorney's Office. On 1 October 1993 Judge Brown denied both the petition and the motion. The petition was founded on Judge Dean having recused herself. Judge Brown held "I am affirming her orders, because the recusal has nothing whatsoever to do with the case, it has to do with an intervening cause that arose August 13". The motion for disqualification of the Dade County State Attorney's Office was denied for a number of reasons, including that the Court of Appeal had affirmed Judge Dean's order of 18 March and the arguments sought to be relied on before Judge Brown had been raised or could have been raised earlier. 180 Mr Gersten did not surrender himself at the Dade County Jail on 4 October 1993. On that day a hearing took place before Judge Brown. Mr Band appeared for the State Attorney's Office and Ms Calzon appeared for Mr Gersten. Ms Calzon informed the court that she did not know where Mr Gersten was and that she had received no indication from him that he intended to appear. 181 At the hearing Judge Brown said:- "There's a court order outstanding by Judge Dean for him to surrender which has been appealed and affirmed on appeal with a mandate coming down." . . . "I want to know what the appropriate remedy is when one violates the order to surrender". 182 Mr Band submitted that the appropriate remedy would be a writ of alias capias. He said a writ of alias capias could be enforced extra-territorially. Ms Calzon submitted that it was a civil contempt matter and not a criminal matter and that the appropriate remedy would be a writ of bodily attachment. A writ of bodily attachment could not be enforced extra-territorially. Judge Brown decided to issue a writ of alias capias. 183 The writ of alias capias was addressed to all the sheriffs of the State of Florida and commanded them to immediately arrest the defendant (Mr Gersten) and bring him before Judge Brown to be dealt with according to law. There were a number of blanks in the writ. For example, the writ contained the assertion "I find probable cause that Gersten, Joseph M. did commit a crime(s) of" but the space for the insertion of a specific crime or crimes was left blank. The writ alleged a "failure to appear in court to answer pending charges of" and the words "civil motion contempt of court" were then typed. Under the heading "extradite information" there were three alternatives, "extradite anywhere", "extradite within 1500 miles" and "extradite Fla (Florida) only", of which "extradite anywhere" was checked. 184 Later the same day Judge Brown of his own motion quashed the writ of alias capias and issued a writ of bodily attachment. The writ of bodily attachment was addressed to all the sheriffs of the State of Florida and commanded them "to take into custody Joseph M Gersten and place him in the Dade Co Jail pursuant to the order of contempt entered on March 18, 1993 by Judge Amy N Dean". 185 In July 1996 Ms Calzon on behalf of Mr Gersten filed a motion to quash the writ of bodily attachment and for relief from the order of contempt of 18 March 1993. The grounds of the application were that under Florida statute law a prosecution for theft must be commenced within three years after the offence was committed, (there was other evidence before me that under Florida law the limitation period for a prosecution for theft is five years) that more than three years had elapsed since the theft of Mr Gersten's car and that, consequently, the State could no longer prosecute anyone for the theft of Mr Gersten's car and could not take a statement from any person for the purposes of such a prosecution and, therefore, Mr Gersten could no longer comply with Judge Dean's order. On 8 August 1996 this motion was denied by Judge Lando. 186 A further motion to quash the writ of bodily attachment and for relief from the order of contempt of 18 March 1993 was filed on or about 29 September 2000. The grounds of this application were similar to the grounds of the previous application. A further matter of fact relied on was that in July 2000 Ms Rundle as the State Attorney, had publicly announced that all cases relating to Mr Gersten were closed and the State Attorney's Office files relating to Mr Gersten had, in accordance with Florida law, been made public. Reference was also made in the motion to statements by Judge Dean in 1993 that she was not seeking to punish Mr Gersten but to enforce compliance with her orders. 187 On 24 October 2000 Judge Sigler of the Circuit Court for the Eleventh Judicial Circuit denied the motion. In her order Judge Sigler recited some of the background facts. Paragraphs (6-10) of her order were in the following terms:- "6. During the time frame of the appeal, the Petitioner fled the jurisdiction of the court and left the State of Florida. If recent television shows are accurate, then the Petitioner currently resides in Australia. His attorney represents that he has achieved some type of 'political persecution' status in that country. 7. The Office of the State Attorney published a statement in July 2000 that the statute of limitations on prosecution in the grand theft case in which the Petitioner was ordered to testify has run. This court is not in a position to rule on whether the statute of limitations has run, and chooses not to render an opinion on that particular assertion. Petitioner's attorney appeared in court on October 6, 2000 to argue that, since the prosecution can no longer go forward with the case, then it is impossible for the Petitioner to comply with the order and thus purge himself of the contempt. Therefore, the attorney for the Petitioner petitions this court to Quash the Writ of Bodily Attachment. 8. This request somewhat strikes the court as akin to the defendant who, after killing his or her parents, then begs the court to be lenient in sentencing, as the defendant is now an orphan. It is the passage of time, caused by the Petitioner wilfully fleeing the jurisdiction of the court, that has affected the viability of the grand theft case. 9. It is the finding of this court that the defendant is a fugitive from an order of this court and thus the 'fugitive from justice' doctrine applies. Both United States and the Florida Supreme Court have long held that courts may dismiss the appeals of criminal defendants who flee the jurisdiction while their appeals are pending and otherwise not allow fugitive defendants to pursue legal matters in court while they are fugitives from justice. 10. This court finds that a 'fugitive from justice is not entitled to call upon the resources of court for determination of his case'. It offends this court's basic sense of equity and fair play for the defendant to now ask this court to hear his cause, while still a fugitive. Or to quote another learned colleague, 'a fugitive from justice cannot eat his cake and have it too'. To grant the petitioner motion at this time would in essence allow him to benefit from the wrongful act of fleeing the jurisdiction of this court, which is contrary to public policy. The proper course for this court would be to hold the matter in abeyance. Therefore, it is the finding of this court that this matter is held in abeyance until such time as the Petitioner shall appear before this court, in person, and the Petitioner's Motion to Quash is Denied". Disciplinary Proceedings in Florida 188 In May 1992, as a result of newspaper articles about the allegations made by the car thieves, the Florida Bar, which had the responsibility for taking disciplinary proceedings against attorneys in Florida, opened a "monitor" file for Mr Gersten (Florida Bar file 92-71434). According to evidence given by Mr Hendrix, "the purpose of a monitor file is to monitor a pending situation which has the potential to become a disciplinary matter". In late 1993, the Florida Bar made a complaint of professional misconduct against Mr Gersten. One basis of the complaint was that Mr Gersten had failed to comply with Judge Dean's order of 18 March 1993 and had not turned himself in, after his appeals challenging Judge Dean's order had been determined or at least his applications for a stay of execution of Judge Dean's order had been denied. 189 At the time the Florida Bar made its complaint, Mr Gersten's appeal from Judge King's decision to the United States Court of Appeals for the Eleventh Circuit was still outstanding, although that Court had denied a motion for a stay pending the hearing of the appeal and an alternative motion that Mr Gersten be released pending the hearing of the appeal. 190 The complaint by the Florida Bar was partly based on Rule 4-3.4(c) of the Rules of Professional Responsibility for lawyers in Florida, which provides:- "a lawyer shall not . . . (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists". 191 The complaint came before a grievance (disciplinary) committee (Eleventh Judicial Circuit Committee 11M) made up of lawyer and lay members, whose function, as an investigative body, was to determine whether there was "probable cause" for the complaint by the Florida Bar or, alternatively, whether there had been "minor misconduct" by the lawyer. 192 A grievance committee was not obliged to have a "live" hearing, that is a hearing with oral evidence and oral argument. A grievance committee could decide whether there was "probable cause" for a complaint, merely on an examination of documents. However, the grievance committee before whom the complaint against Mr Gersten came in early 1994 decided that there should be a live hearing. 193 Under the rules governing grievance committees, if a member of a committee is absent from a meeting, the member can, if he or she reviews a transcript of that meeting, participate in a subsequent meeting dealing with the same matter. 194 Members of a grievance committee serve only for limited periods, so that the membership of a committee changes over time. 195 Grievance Committee 11M for the Eleventh Judicial Circuit met on two occasions, on 18 January 1994 and 7 March 1994, to consider the Florida Bar's complaint against Mr Gersten. It is convenient to refer to the persons who met on these occasions as "the first grievance committee", even though throughout the disciplinary proceedings against Mr Gersten there was formally only one grievance committee, that is "the Eleventh Judicial Circuit Grievance Committee 11M". On both occasions the Florida Bar was represented by its counsel, Ms Needleman. Mr Gersten, who was in Australia, did not appear in person before the grievance committee. He was represented before the committee by Ms Calzon and Mr Gayoso. 196 Mr Rosenblatt, an Assistant State Attorney in the State Attorney's Office, gave evidence before the grievance committee. He was called as a witness by counsel for the Florida Bar to give members of the committee a history of the matters giving rise to the complaint. 197 Mr Rosenblatt was subjected to a long cross-examination by Ms Calzon, in which Ms Calzon took him to many documents and endeavoured to raise most of the matters which had been raised in the court proceedings involving Mr Gersten. 198 No other person gave evidence before the first grievance committee. Before the second meeting on 7 March 1994, the chairman of the committee, at the request of Ms Calzon and with some misgivings about the relevance of any evidence they could give, issued subpoenas to Mr Band and Mr Gregorie. Motions to quash these subpoenas were brought. 199 During the hearings before the first grievance committee a large number of documents were tendered and became exhibits before the committee. 200 At the conclusion of the hearing on 7 March 1994 the committee through its chairman announced its decision that "we will delay or continue or defer this committee's meeting, pending at least a present status of your client's federal case" (that is, pending the final disposition of Mr Gersten's appeal to the United States Court of Appeals for the Eleventh Circuit). The chairman also said that the motion by the State to quash the subpoenas to Mr Band and Mr Gregorie would be granted, without reaching the merits and without prejudice. The Chairman said that when the committee as then constituted, reconvened, it might or might not desire an evidentiary hearing. 201 Counsel for the Florida Bar said that the matter would be "taken off active status and put on monitor". 202 After Mr Gersten's appeal to the Eleventh Circuit Court of Appeals was determined on 15 May 1995, Mr Hendrix, who was then counsel for the Miami Branch Office of the Florida Bar, wrote a letter on 29 June 1995 to Ms Calzon to the effect that, now the appeal had been determined adversely to Mr Gersten, the complaint by the Florida Bar should proceed. In his letter Mr Hendrix quoted Florida Bar file No. 95-71604 (11M). 203 On 5 July 1995 Ms Calzon wrote to Mr Hendrix, saying that a motion for a re-hearing had been filed with the Eleventh Circuit Court of Appeals and that Mr Gersten intended, if the motion for a re-hearing was unsuccessful, to bring proceedings in the Supreme Court of the United States. She asked that the file retain its monitor status, "until Mr Gersten's appeal process is complete". She noted that in his letter Mr Hendrix had referred to a new file number and asked whether a new file had been opened. 204 On 10 July 1995 Mr Hendrix wrote to Ms Calzon, advising that file No 92-71434, which had been a monitor file, had been closed and that a new file No. 95-71604 had been opened. He said:- "The new file contains the same information, allegations and rule violations as the previous and is the same in all respects except for the file number". 205 Mr Hendrix said that the Florida Bar intended to pursue the matter before a grievance committee, as soon as practicable. 206 On 12 September 1995 Mr Hendrix forwarded Florida Bar file No. 95-71604 to the then chairman of Grievance Committee 11M, Mr Burt E. Redlus. 207 On 12 September 1995 Mr Hendrix wrote to Ms Calzon, informing her that there would be no live hearing before the grievance committee and that the only material the Florida Bar would place before the grievance committee would be the order of contempt. 208 On 15 September 1995 Ms Calzon wrote a letter to Mr Hendrix, arguing that Mr Gersten should have the opportunity to adduce evidence before the grievance committee. 209 In a letter of 20 September 1995 Mr Hendrix reiterated the Florida Bar's position that there would be no live hearing, that there would be a "paper" hearing and that the grievance committee would determine whether there was "probable cause" on the basis of the documents presented to the committee by the Florida Bar and by Mr Gersten. Mr Hendrix said:- "It is the Bar's position that the issue to be presented to the grievance committee that there is an existing lawful order that has not been modified or overturned, with which Mr Gersten has refused to comply". 210 In his letter of 20 September Mr Hendrix complained that Ms Calzon in her letter of 15 September had misrepresented what Mr Hendrix had said in a telephone conversation on 12 September and Mr Hendrix suggested that all future communications between them should be in writing. 211 In a further letter written on 20 September 1995 Mr Hendrix called for Mr Gersten's written responses to questions about whether the order of 18 March 1993 had been varied or set aside and whether and how Mr Gersten had complied with the order. 212 On 21 September 1995 Mr Hendrix wrote to Ms Calzon, enclosing a list of the then current members of the grievance committee. On 27 September 1995 Ms Calzon wrote a letter to Mr Hendrix asking that all members of the grievance committee who fell within any one of a large number of classes should recuse themselves. 213 On 28 September 1995 Ms Calzon wrote a letter to Mr Hendrix, in which she urged the Florida Bar to postpone all disciplinary proceedings "until Mr Gersten has really exhausted his avenues of appeal". 214 On 29 September 1995 Ms Calzon wrote a letter to Mr Hendrix, argumentatively and discursively replying to the letter of 20 September 1995 which had required written responses to Mr Hendrix's questions. She attached some documents to her letter and referred to many other documents. She pointed out that the grievance committee had power to recommend an "admonishment for minor misconduct". She enclosed a copy of an order dated 27 July 1995, whereby the Eleventh Circuit Court of Appeals had denied Mr Gersten's petition for a re-hearing. 215 On 2 October 1995 Mr Hendrix wrote again to Ms Calzon. He said that the proceeding of the grievance committee scheduled for 10 October 1995 would not be postponed. Two members of the grievance committee would not participate, including Ms Susan Collins. Mr Hendrix complained that Ms Calzon in her letter of 29 September 1995 had failed to fully answer the questions in Mr Hendrix's letter of 20 September 1995. In the last paragraph of the letter Mr Hendrix said that he was attaching "an updated index of materials to be reviewed by the above referenced grievance committee". In the attached updated index of materials Mr Hendrix included "respondent's letter dated 29 September 1995 including the documents attached thereto or referred to therein". 216 On 5 October 1995 Ms Calzon wrote a letter to Mr Hendrix. She inquired whether the new file contained all the exhibits and the testimony before the previous grievance committee, as indicated in Mr Hendrix's letter of 10 July 1995, and whether "the same rule violations" were being relied on by the Florida Bar. Ms Calzon noted that Ms Collins, who would now not be participating in the proceeding on 10 October, was the only member of the committee who, as a member of the first grievance committee, would have had knowledge of the evidence presented to the first grievance committee. 217 In a letter dated 6 October 1995 (which was a Friday), which I accept was faxed to Ms Calzon after ordinary business hours, Mr Hendrix said that the index of materials to be reviewed by the grievance committee had been modified, by deleting the words "or referred to therein" after the words "respondent's letter dated September 29, 1995, including the documents attached thereto". Mr Hendrix stated that the issues to be determined by the committee were (a) had Mr Gersten fully complied with the contempt order (b) had the contempt order been overturned or modified (c) was there cause to believe that the failure to fully comply with the order constituted misconduct justifying further disciplinary action. 218 Ms Calzon did not become aware of the letter of 6 October 1995, until she attended her office on the morning of Tuesday 10 October, the day fixed for the hearing before the grievance committee. Monday 9 October 1995 was a public holiday in the United States. 219 When she became aware on 10 October 1995 of the letter of 6 October 1995 Ms Calzon was "frantic". On 10 October 1995 Ms Calzon forwarded to the office of the chairman of the grievance committee a long letter setting out the history of the disciplinary proceedings and enclosing copies of her correspondence with Mr Hendrix, copies of the many exhibits which had been presented to the first grievance committee and a document described as "defences" to the alleged rule violations. 220 On 10 October 1995 Ms Calzon also filed an emergency petition to the Supreme Court of Florida. This emergency petition was denied. 221 A meeting of the grievance committee took place on 10 October 1995. No member of the committee who participated in the hearing had been a member of the committee in January-March 1994. Ms Calzon was not present at the meeting. In the evidence before me there is no record of what happened at the meeting. However, on 11 October 1995 Mr Hendrix, who had been present at the meeting, wrote to Ms Calzon, notifying her that the Eleventh Judicial Circuit Grievance Committee 11M on 10 October 1995 had found probable cause for a violation by Mr Gersten of rule 4-3.4(c) of the Rules of Professional Responsibility. 222 On 23 October 1995 Mr Hendrix wrote to Ms Calzon, enclosing a copy of the Florida rules of discipline relating to an admission of minor misconduct and forwarding a draft admission of minor misconduct. Mr Hendrix said in his letter that, if the admission of minor misconduct was executed by Ms Calzon on behalf of Mr Gersten and returned, he would submit it to the grievance committee to be considered by the committee. 223 On 20 December 1995 Ms Calzon wrote to Mr Hendrix. She explained that she had not responded earlier, because she had been away from her office. She enclosed a modified admission of minor misconduct which she had signed on behalf of Mr Gersten. Mr Gersten, who had been consulted by Ms Calzon, was not prepared to accept the admission of minor misconduct in the form drafted by Mr Hendrix. 224 On 27 December 1995 Mr Hendrix wrote to Ms Calzon, advising her that the grievance committee had voted against Mr Gersten's modified admission of minor misconduct and that a formal complaint of misconduct would be filed in the Florida Supreme Court. 225 A formal complaint was filed by the Florida Bar with the Supreme Court of Florida. In accordance with what appears to be the usual practice, the complaint was referred to a Referee, whose function was to determine factual issues and make recommendations as to guilt and discipline (penalty). On 6 March 1996 Judge Goldstein, a circuit court judge from another judicial circuit in Florida, was appointed Referee. 226 Proceedings before the Referee took place on 16 July 1996 and 30 August 1996 and perhaps on other dates. The only transcript before me of the proceedings before the Referee consists of four pages of a transcript of the hearing on 16 July 1996 (pages 163-166). 227 On 2 August 1996 the Florida Bar filed with the Referee a memorandum relating to discipline, in which it submitted that Mr Gersten should be disbarred for knowingly and contemptuously disobeying, and continuing to disobey, a lawful court order. 228 On 31 October 1996 the Referee made his report. In his report Judge Goldstein made the following findings of fact:- "1. On or about March 18, 1993, Judge Dean entered an order holding Respondent in contempt of court for failure to answer the questions posed by the Office of the State Attorney, which questions Respondent was ordered to answer by Judge Dean. 2. Judge Dean further ordered that Respondent could purge himself of contempt by: a. answering all questions previously ordered to be answered; and b. by continuing his pre-filing statement in the Office of the State Attorney under the terms and conditions previously ordered in August of 1992. 3. Respondent had appealed the March 18, 1993 order, however, by the fall of 1995 all appeals had been exhausted and the order of March 18, 1993 had been upheld in all respects. From the fall of 1995 through and including the present, Respondent had the ability and the opportunity to fully comply with the Circuit Court's orders and he knowingly and wilfully refused to do so. 4. Judge Amy Dean's Order of March 18, 1993 is presumed correct, and is presumed to be based on a complete knowledge of the facts of the Respondent's case. 5. Judge Amy Dean's Order of March 18, 1993 has not been complied with by Respondent. 6. The Respondent has openly refused to comply with Judge Amy Dean's Order of March 18, 1993, based on an assertion that no valid obligation exists. 7. Respondent's appellate rights have been exhausted for approximately eight months, and Respondent still continues an open refusal based on an assertion that no valid obligation exists. 8. Respondent is in the country of Australia and has not returned to comply with Judge Dean's Order. 9. Respondent did knowingly disobey the Circuit Court's order and was, and is, still in wilful contempt of same, all as is above set forth". 229 Judge Goldstein referred to rule 4-3.4(c) of the Rules of Professional Responsibility and held:- "As long as Respondent proceeded in the appellate process, and was awaiting a decision by any court, then he was complying with the exception of 'an open refusal based on an assertion that no valid obligation exists'. Once there were no further appeals taken seeking to overturn the validity of the order, then Respondent was under an absolute obligation to comply with that order. Therefore, it is the conclusion of this Referee that Respondent is precluded from presently contending that he openly refuses to obey the order based on an assertion that no valid obligation existed". 230 Judge Goldstein recommended that Mr Gersten be found guilty of violating rule 4-3.4(c). 231 On the question of an appropriate sanction, Judge Goldstein referred to standard 6.22 of the Florida Standards for Imposing Lawyer Sanctions, which provides:- "Suspension is appropriate when a lawyer knowingly violated a Court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding". 232 Judge Goldstein found the following aggravating and mitigating factors:- "A. Aggravating Factors The only aggravating factor applicable to Respondent's misconduct is Standard 9.22(g), Florida Standards for Imposing Lawyer Sanctions - refusal to acknowledge the wrongful nature of conduct. Respondent has not only refused to acknowledge the wrongful nature of the conduct, but continues to refuse to comply with the Court Order, B. Mitigating Factors Respondent has asked for consideration of the following mitigating factors under Standard 9.22 of the Florida Standards for Imposing Lawyer Sanctions: a. absence of a prior disciplinary record; b. absence of a dishonest or selfish motive; c. personal or emotional problems; d. full and free disclosure to disciplinary board or cooperative attitude toward proceedings; and e. character or reputation. The Court finds that mitigating factors (b) and (c) are applicable but are not given much weight. The Court further finds that mitigating factors (a) and (e) are applicable and should be given great weight. The absence of a prior disciplinary record in light of the Respondent's twenty-one years of continuous practice of law needs to be considered. Similarly, the Respondent's public service of more than twenty years must be considered as a mitigating factor. However, the Court finds that these mitigating factors are outweighed by the aggravating factor - the refusal to acknowledge the wrongful nature of conduct - in light of the Respondent's continuing refusal to comply with the Court order". 233 Under the heading of "Recommended discipline" the Referee said:- "In light of the foregoing and after considering the aggravating and mitigating factors, as well as The Florida Bar's recommendation of disbarment, the Court finds that the misconduct does not rise to the level where disbarment is an appropriate sanction. The Referee recommends that Respondent be suspended from the practice of law until he complies with the Court Order. However as a sanction for the violation of Rule 4-3.4(c), Rules of Professional Responsibility, the Referee recommends that Respondent be suspended from the practice of law for one year after he complies with the Court Order". 234 The Referee found that certain costs had reasonably been incurred by the Florida Bar, including a staff investigator's fees. 235 As I have already indicated, the function of the Referee was to make findings of fact and to make recommendations as to guilt and as to a sanction or penalty. The tribunal having the jurisdiction to make orders in the disciplinary proceedings was the Supreme Court of Florida, before which the disciplinary proceedings came. 236 The Supreme Court of Florida (consisting of 5 judges; two members of the court recused themselves) gave a judgment per curiam on 5 March 1998. The Court outlined the background facts as follows:- "The state attorney subpoenaed Gersten to give a sworn statement as part of her investigation relating to an automobile of Gersten's that was reported stolen. Gersten was granted use immunity, but refused to testify. Judge Amy Dean entered an order holding Gersten in civil contempt for failing to answer questions posed by the state attorney and ordered answered by Judge Dean. Gersten appealed the order but by the fall of 1995 all appeals had been exhausted and the order had been upheld in all respects. Because he continued to refuse to testify Judge Joel Brown ordered that Gersten be jailed. Rather than report to jail, Gersten departed from Florida and is now living in Australia. The parties stipulated that Gersten has not complied with the order of contempt". 237 The Court referred to the Referee's report as follows:- "The referee concluded that Gersten had violated Rule Regulating The Florida Bar 4-3.4(c), which reads as follows:- 'A lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists'. The referee reasoned that rule 4-3.4(c) should be read in pari materia with rule 7-106A of the former Code of Professional Responsibility, which states as follows: 'A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.' Thus, the referee determined that the exception in rule 4-3.4(c) 'for an open refusal based on an assertion that no valid obligation exists', like former rule 7-106A, requires the attorney to be (1) acting in good faith and (2) seeking redress in an appellate court. The referee concluded that once there were no further appeals seeking to overturn the validity of the court order, Gersten was under an absolute obligation to comply with Judge Dean's order. The referee recommended that Gersten be suspended from the practice of law until he complies with the court order, and that he be suspended from the practice of law for a period of one year after complying with the order". 238 On the question of guilt the Supreme Court said at paragraph (1,2):- "[1,2] Gersten argues that the referee's findings and conclusion are not supported by competent and substantial evidence. Essentially, he contends that despite the exhaustion of all appeals, he is justified in continuing to refuse to obey the court order based upon his assertion that 'no valid obligation exists'. He claims that he was denied his right to conduct discovery in order to develop proof that he was not obliged to testify because the state attorney's office was acting illegally, was conducting the investigation in bad faith to harm his political future, and was acting to deny Gersten his constitutional rights. We cannot accept Gersten's contentions. Under Gersten's position, a lawyer who challenges a court order would now be able to avoid disciplinary action under rule 4-3.4 indefinitely by asserting a subjective belief that no valid obligation exists. Such a result invites disrespect for the judicial system. As we explained in Florida Bar v Rubin , 549 So.2d 1000. 1003 (Fla.1989): 'An attorney is not permitted to ignore and refuse to follow a court order based upon his personal belief in the invalidity of that order. To countenance that course is to court pandemonium and a breakdown of the judicial system'. We conclude that the referee properly precluded Gersten from pursuing discovery for the purpose of going behind the order of contempt. We find competent and substantial evidence to support the recommendation of guilt". 239 The Supreme Court then addressed the question of an appropriate "discipline". The court noted that "while a referee's recommendation for discipline is persuasive, this court has the ultimate responsibility to determine the appropriate sanction". The court rejected arguments on behalf of Mr Gersten based on the allegedly "indefinite" nature of the sanction and that an attorney could not be disciplined for a failure to meet a civil obligation, absent a finding of fraudulent or dishonest conduct. After some references to the Referee's report, the Supreme Court said in the concluding paragraph of its judgment:- "We approve the referee's recommended discipline. We hereby suspend Gersten from the practice of law until he complies with the prior order and for one year thereafter. The suspension will be effective immediately….". State Attorney's Office Files Opened 240 At about the end of July 2000 Ms Rundle, who was still the State Attorney for the Eleventh Judicial Circuit in Florida, announced that the statute of limitations had run for all the alleged offences involving Mr Gersten and that in accordance with Florida law the files of the State Attorney's Office relating to Mr Gersten would be made available for public inspection. After the files had been made available for public inspection, they were inspected by Ms Calzon and by Dr McNaughtan. Many documents which Ms Calzon or Dr McNaughtan had located in the files of the State Attorney's Office were admitted into evidence before me. Mr Gersten in Australia 241 As previously stated, Mr Gersten came to Australia on 6 September 1993 and he has not since returned to the United States. 242 Mr Gersten is the holder of a bridging visa, which entitles him to work and study in Australia. On or about 20 October 1993 he applied for refugee status in Australia. Later in this judgment I will deal further with Mr Gersten's application for refugee status. 243 In August 1996 Mr Gersten was admitted to practice as a legal practitioner in New South Wales. He has also been admitted to practice as a legal practitioner in every other State and Territory of the Commonwealth, except Victoria. He has practised as a solicitor in New South Wales and as a barrister in the Australian Capital Territory and Queensland and in the Federal Courts. 244 Before Mr Gersten was admitted as a legal practitioner in New South Wales, he disclosed to the Law Society that he had been held in civil contempt of court in Florida. 245 On 7 January 1999 the Law Society wrote a letter to Mr Lee on behalf of Mr Gersten. In the letter the Law Society said inter alia:- "Having regard to the judgment of the Supreme Court of Florida of 5 March 1998 and the provisions of Pt 65A r 3 of the Supreme Court Rules 1970, it appears that Mr Gersten may be suspended from practice unless the Supreme Court of New South Wales otherwise orders… Has Mr Gersten approached the Supreme Court of New South Wales in this regard?" 246 Mr Gersten did not receive this letter until 18 January 1999 when he returned to work after the Christmas break. 247 As stated earlier in this judgment, the present proceedings were commenced on 20 January 1999. Proceedings in the Federal Court of Australia 248 A considerable volume of evidence was adduced before me about proceedings brought by Mr Gersten in the Federal Court of Australia. It is appropriate to make some reference to this evidence, although, for reasons I will give later in this judgment, I have concluded that anything which may have happened in connection with proceedings by Mr Gersten in the Federal Court should not be taken into account by me in the present proceedings. 249 As I have already indicated, Mr Gersten applied to be accorded refugee status in Australia. I will not attempt to trace all of the steps in the long and convoluted history of his application. On 8 October 1998 his application was rejected by the Refugee Review Tribunal. An application to the Federal Court to review the decision by the Refugee Review Tribunal was dismissed by Katz J of the Federal Court on 17 December 1999. An appeal was then brought from the decision of Katz J to the Full Court of the Federal Court, which on 5 July 2000 dismissed the appeal. Mr Gersten has applied for special leave to appeal to the High Court and has also invoked the original jurisdiction of the High Court. 250 In about 1995 Mr Gersten went temporarily to New Zealand for the purpose of applying, while in New Zealand, to migrate to Australia as a skilled immigrant. In documents which were enclosed with the letter notifying him that his application had been rejected, there were passages which had been "whited out", which appeared to refer to communications from United States authorities, including the Federal Bureau of Investigation, to the Australian Department of Immigration and Multicultural Affairs and the Australian Federal Police. 251 Mr Gersten made applications under the Freedom of Information Act for access to documents held by the Department of Immigration and Multicultural Affairs and the Australian Federal Police, including documents which had been supplied to those bodies by United States authorities. Mr Gersten was granted access to some of the documents but refused access to other documents. Mr Gersten brought appeals to the Administrative Appeals Tribunal. On 21 July 1999 and 1 November 1999 the Administrative Appeals Tribunal (Deputy President Mr McMahon) affirmed the decisions under review that documents held by the Department of Immigration and Multicultural Affairs and the Australian Federal Police respectively, to which Mr Gersten had been refused access, were exempt documents under the Freedom of Information Act. Appeals were then brought by Mr Gersten from the decisions of the Administrative Appeals Tribunal to the Federal Court. 252 The documents which were claimed to be exempt under the Freedom of Information Act had been forwarded by the Department of Immigration and Multicultural Affairs and the Australian Federal Police to the Administrative Appeals Tribunal and, following the appeals to the Federal Court, these documents were forwarded to the Registry of the Federal Court. 253 Mr Gersten had engaged a clerk to attend at the Federal Court Registry and uplift documents or obtain copies of documents for the purpose of the preparation of appeal books for appeals by Mr Gersten. In about April 2000 the documents for which exemption was claimed and which had up to that stage been held to be exempt were mistakenly handed over by the Federal Court Registry to the clerk, who brought the documents back to the office of Mr Lee, where Mr Gersten was working as a consultant. On inspecting the documents Mr Gersten realised that the clerk had brought back the documents for which exemption had been claimed and which Mr Gersten was seeking to obtain access to. 254 An opinion relating to the documents was obtained by Mr Gersten from Mr Grey of counsel and the documents were discussed at a conference Mr Gersten had with Mr Stevens of senior counsel on 28 April 2000. That Mr Gersten had come into possession of certain documents was mentioned at a mention on 3 May 2000 before Wilcox J. of the Freedom of Information Act appeals and at a mention on 12 May 2000 of the appeal to the Full Court of the Federal Court from the decision of Katz J. 255 Mr Gersten made a number of sets of copies of the documents and provided sets to his lawyers and to Dr McNaughtan, who in May 2000 took his set of the documents to the United States. 256 On 25 May 2000 Mr Lee made an affidavit in the appeal from the decision of Katz J, to which some of the exempt documents were annexed, and on the following day this affidavit was served on the Australian Government solicitor. It was quickly realised by solicitors within the office of the Australian Government solicitor that by some means Mr Gersten had obtained copies of the documents for which exemption was being claimed. 257 On 31 May 2000 Whitlam J of the Federal Court, on ex parte applications by the Minister for Immigration and Multicultural Affairs and the Australian Federal Police, made orders that Mr Gersten and the lawyers associated with him, including Mr Lee, deliver up the exempt documents. On 2 June 2000, after initially contesting that the documents should be required to be delivered up, counsel for Mr Gersten and Mr Lee informed Whitlam J that Mr Gersten and Mr Lee would comply with the orders made ex parte on 31 May 2000. 258 In the proceedings before me it was not suggested by the Law Society that Mr Gersten had come into possession of the documents for which exemption was claimed, otherwise than in the manner I have described, that is by a mistake occurring in the Federal Court Registry for which Mr Gersten was in no way responsible. However, it was submitted on behalf of the Law Society that Mr Gersten had been guilty of professional misconduct or impropriety, in not immediately returning the documents to the Registry, after he had discovered what the documents were, and in endeavouring to make use of the documents. 259 Evidence about the Federal Court proceedings and about the exempt documents was given before me by Mr Gersten himself, Mr Lee, Mr Coombs a junior barrister who sometimes appeared for Mr Gersten, Mr Grey and Mr Stevens of Queens Counsel and much documentary evidence was tendered. Further Evidence 260 I have incorporated much of the affidavit, oral and documentary evidence in the outline of matters and events which I have just completed setting out. I do not intend to refer to all the rest of the voluminous evidence adduced before me. However, it is desirable that I refer to certain parts of it. Mr Gersten 261 Mr Gersten made no fewer than six affidavits. The first two affidavits dealt generally with some of the events and matters which I have included in my outline of matters and events. 262 Mr Gersten annexed to his affidavit of 7 April 2000 a "practice summary", that is a summary of his experience as a lawyer in Australia. The Law Society did not dispute this summary. 263 In an affidavit described as his "third affidavit" Mr Gersten expressed "my attitude in general terms to the requirement that I obey orders of the court, given that I declined to obey a court order in Florida". In this affidavit Mr Gersten said that he did not believe that circumstances similar to those which had occurred in Florida could occur in New South Wales. He said that he had disobeyed the court order in Florida, not simply because he believed that he was legally entitled to refuse to answer Mr Band's questions or because he disagreed with Judge Dean's order, although he did believe both of those things, but because "the legitimacy of the prosecutorial process leading to those orders was so tainted as to affect the legitimacy of the court orders flowing from it. The prosecutorial process was corrupt and was prepared to, and did in fact, both perpetrate and connive in the perpetration of corrupt practices, including perpetrating a fraud upon the court". Mr Gersten asserted:- "My disobedience of a court order in Florida was based entirely upon the peculiar - probably unique - fact situation which applied to me at that time in the State of Florida". 264 In Mr Gersten's oral evidence in chief the following questions and answers occurred:- "Q. You recall I was asking you about the type of situation, you assert or make an open assertion of right that you don't have an obligation, when told by a court that you do. Why couldn't you keep saying that, and therefore never be guilty of a breach of this rule, so long as you keep making that assertion? A. Because there is the rule of law. Q. Can you elaborate on that? A. At the end of the day, I may disagree with the ruling of a last court, the court of last resort. But at the end of the day I could no longer continue to assert, without violating the court rule, that it was an open refusal. Q. So long as there is an appeal court which can consider the merits of your assertion of right, that is fine, but if you have finished the last appeal and the last court says, 'Whatever you might have thought, you don't have such a right', if you then continue to disobey the order, what would be the outcome in terms of the Bar Rule then, in your opinion? A. I would violate the Bar Rules. Q. At that stage? A. Yes Q. Had you reached the end of an appeal process in the United States? A. In the United States, yes". 265 In an affidavit described as his "fourth affidavit" Mr Gersten gave his account of what had happened on 29 April 1992, an account much of which I have already quoted earlier in this judgment. In this affidavit Mr Gersten also referred to a number of other matters, including records of the use of a telephone in the car on the evening of 29 April 1992 and on the morning of 30 April 1992; documents relating to the recovery of the car, containing apparent inconsistencies in the registration number and the "decal" (that is the registration label) number; the time at which the vehicle was recovered; the role Mr Gersten said he had played as a reformer in Dade County, which he said had antagonised many people; an investigation of Mr Gersten by the Federal Bureau of Investigation; Mr Gersten's relationship with the Mayor of Dade County; photographs which had been found in the car when it was recovered; a gold chain which Mr Gersten had allegedly been wearing on the night of 29 April 1992; and allegations of conduct by Mr Gersten on other occasions involving prostitution or drugs. 266 Copies of the application for the search warrant and the search warrant itself were annexed to the affidavit described as Mr Gersten's "fifth affidavit". 267 In his oral evidence Mr Gersten said that when Amy Dean had been seeking to be elected as a judge, she had personally sought Mr Gersten's support, which he had declined to give, on the grounds that he felt that she did not have the right temperament to be a judge. Later, when his matter came before Judge Dean, Mr Gersten had felt some "angst" as to whether she might impartially hear the matter. Mr Gersten said that some steps had been taken to prepare an application seeking the recusal of Judge Dean. However, the lady who had acted as Ms Dean's campaign manger in the election, who had been a witness to the conversation between Ms Dean and Mr Gersten and who could, accordingly, have corroborated evidence by Mr Gersten about the conversation, had declined to make an affidavit. 268 I note that there is nothing in the transcripts of the court proceedings before Judge Dean in August 1992, January 1993 and March 1993 up to and including 18 March 1993, which would indicate a lack of confidence on the part of Mr Gersten in the impartiality of Judge Dean. 269 I have already referred to the quite effusive praise of Judge Dean by Mr Gersten in his statement made to her on 18 March, 1993. In his evidence before me Mr Gersten said that he had not been sincere in his praise of Judge Dean on 18 March 1993. On 18 March 1993 he had thought it imprudent "to tell Judge Dean that I thought that she was a wretched judge, who, in the circumstances, turned out to prove my assessment of her judicial temperament to be correct". 270 I have reservations about Mr Gersten's evidence about his alleged conversation with Judge Dean before her election and I do not consider that I should accept the evidence. Mr Richey 271 In his affidavit of 29 November 2000 Mr Richey explained his conception of "a Chinese wall". He said:- "The State Attorney established two investigations. One investigation, conducted by Assistant State Attorney Michael Band, was purportedly directed to the investigation and prosecution of the car thieves. A second investigation, conducted by Assistant State Attorney Richard Gregorie, was purportedly directed to the investigation of whether Mr Gersten had committed offences involving drugs, prostitution and making a false report about the circumstances of the theft of his car. In relation to the Band investigation Mr Gersten's involvement was simply as a potential witness, being the victim of the crime. In relation to the Gregorie investigation Mr Gersten was the target of that investigation, being a 'suspect'. In order to protect Mr Gersten's rights under the Fifth Amendment to the U.S Constitution it was necessary that these parallel investigations be separated by a 'Chinese Wall'. That is, the two investigations supposedly were to be conducted independently, without any discussion or sharing of information between the two investigators, and without one investigator being able to use against Mr Gersten information obtained from him by the other investigator. In other words, there was a theoretical 'wall' isolating the two investigations from each other - albeit that they were both being conducted by the same Office under the direction of Janet Reno". 272 In his affidavit Mr Richey said, with regard to the alleged perjury trap:- "It follows that the complete set of options open to Mr Gersten was:- i. answer Band's questions truthfully, and be charged with perjury; or ii. avoid a perjury charge on Band's side of the 'Chinese Wall' by untruthfully admitting that the allegations by the car thieves were correct - but then be unable to defend drugs, prostitution and false report charges to be brought by Gregorie on his side of the 'Chinese Wall' without then being charged with perjury; or iii. refuse to give any answers to Band - the choice which he ultimately adopted. Mr Gersten was in a 'lose/lose/lose' position. It was a classic 'perjury trap'". 273 After setting out what he considered was the complete set of options open to Mr Gersten, Mr Richey said:- "I advised Mr Gersten at that time of the full implications of the State Attorney's intentions. I advised him of my personal belief and professional opinion that the State Attorney's Office had deliberately set out to engineer this scenario, and had done so in violation of the law and constitution…". 274 In his oral evidence Mr Richey confirmed that on the evening of 29 April 1992 he had received a telephone call from Mr Gersten and had gone to Mr Gersten's home. 275 Mr Richey said that he had had two purposes in having the meeting on 21 May 1992, that is "to gather intelligence as to what the State's case was against Mr Gersten" and to see whether the matter could be "settled". 276 I accept that Mr Richey gave Mr Gersten the advice he said he did, that he went to Mr Gersten's home on the night of 29 April 1992 and that he had the purposes he said he had in having the meeting on 21 May 1992. 277 Mr Richey said that at the meeting on 21 May 1992 Mr Havens had been endeavouring to recruit Mr Gersten as a witness in an investigation into alleged corruption in dealings in Government Bonds in Florida and that that was why Mr Havens had been so insistent that Mr Gersten tell the whole truth about the events of the night of 29 April 1992, in case, if Mr Gersten became a prosecution witness, his credibility as a witness might be sought to be impeached by reference to the events of 29 April 1992. This part of Mr Richey's evidence is not supported by any of the documents I have read, including the transcript of the extensive testimony given by Mr Richey himself, Mr Havens and Mr Gregorie on 14 January 1993 and I do not consider that I should accept it. 278 Mr Richey said in his evidence that there was a difference between the routine sort of caution against committing perjury given by the State Attorney's Office to any prospective witness and what had been said to Mr Richey by Mr Havens on 21 May 1992. It was not routine for the State Attorney's Office to tell a person who had not yet testified what the State Attorney's version of the truth was. 279 Mr Richey suggested in his evidence that, if the evidence given by Mr Havens and Mr Gregory on 14 January 1993 before Judge Dean was read carefully, it could be seen that their evidence was essentially consistent with his own evidence. 280 Mr Richey said that under Florida law, if a public official such as a County Commissioner is charged with a felony including perjury, the Governor of the State has power to suspend the official, pending the hearing of the felony charge. Mr Richey considered that, if Mr Gersten had been charged with perjury, the then Governor of Florida would have suspended Mr Gersten. A charge of perjury would have been easier to prove than a charge of a substantive offence and might have been capable of being proved, without the State Attorney's Office having to resort to these "rather disreputable" witnesses that is the car thieves. Much of the evidence by Mr Richey which I have just summarised is evidence of opinion, rather than evidence of fact. I will be returning to a number of these matters later in this judgment. Ms Calzon 281 Ms Calzon made three affidavits. 282 Her first affidavit of 16 December 1999 was in fact an affidavit in reply to an affidavit by Mr Hendrix filed on behalf of the Law Society. 283 In her second affidavit of 20 September 2000 Ms Calzon said that between 2 August 2000 and the date of her affidavit she had conducted a partial examination of the files of the Dade County State Attorney's Office in the Gersten case and had personally examined and had had copied a very large number of documents which she listed. 284 In her affidavit of 29 November 2000 Ms Calzon, as a Florida lawyer, made general comments about the prosecutorial and judicial system in the United States. She said that, while the system of justice in the United States was generally fair, there were features of the system which in particular cases allowed the system to be subverted or abused, so as to produce miscarriages of justice. In later parts of her affidavit she said:- "The principal feature of the U.S system which permits it to be corrupted and subverted in particular (hopefully rare) cases is that in many jurisdictions prosecutors and judges are not quarantined from political influence - indeed they are subject directly and indirectly to political influence. Where a case has a strong political component, or where the interests of factions of the political system are affected by the outcome, or where political officials attempt to influence the outcomes of the system, then the potential for abuse of the system is high". 285 I disallowed parts of Ms Calzon's affidavit in which she argumentatively contended that various decisions taken in Mr Gersten's case had been "political" decisions. 286 In her oral evidence Ms Calzon said that she had worked for a time within the State Attorney's Office and had then gone into private practice. Mr Gersten had become a client of hers in 1993 and had continued to be a client up to the present. 287 Ms Calzon gave evidence of attempts by her, which were ultimately successful, to gain access to the documents in the State Attorney's files relating to Mr Gersten. By a letter of 17 May 2000 the State Attorney's Office had informed Ms Calzon that the Gersten file was missing. By a letter of 20 July 2000 the State Attorney's Office had informed Ms Calzon that the Gersten file had been found but that the documents in the file were exempt from public records law, because there was still an "open" investigation. A few days later Ms Rundle gave a televised interview in which she said that the Statute of Limitations had run and that the Gersten investigation was no longer "open". From 1 August 2000 onwards Ms Calzon was given access to the documents in a conference room at the State Attorney's Office. The documents were voluminous and not in any discernible order. A secretary within the State Attorney's Office made copies of the documents, as requested by Ms Calzon. 288 Among the documents was a folder labelled "Osborn" containing documents about an investigation, particularly by a police officer named Osborn, into the murder in April 1992 in Florida of a man named Gregory Wellons. Ms Calzon gave evidence that she had inspected documents in this folder and had had copies made and had then put the original documents back in the folder. However, when the State Attorney's Office later distributed copies of the documents in its files, only the "Osborn" folder cover was included and not the documents which had been within the folder which Ms Calzon had inspected. It was submitted during the hearing before me that the State Attorney's Office had deliberately suppressed the contents of the Osborn folder. However, before the hearing before me concluded, I was informed that the documents which had been within the Osborn folder had been located by the State Attorney's Office and I do not make any finding that the State Attorney's Office had deliberately suppressed the contents of the folder. 289 There was admitted into evidence before me (Calzon exhibit 1) a copy of a report dated 5 May 1992 by Detective Osborn of his investigation into the death of Gregory Wellons. This document had been within the Osborn folder when it had been inspected by Ms Calzon at the State Attorney's Office. According to this report, a young man named Wayne Pierce had supplied information to the police that he had seen a man matching Mr Gersten's description and driving a vehicle similar to Mr Gersten's, shoot Wellons. The information supplied by Pierce was inconsistent in some respects with information police had obtained from other sources about the shooting of Wellons. On 1 May 1992 Detective Osborn questioned Pierce and his report continues:- "Pierce stated that he was told by Lisa (McCann) to come to the place and tell this story because she was going to be paid some money by the F.B.I. Pierce stated that the entire story was a lie and that he had never seen anyone known as Joseph Gersten. Pierce denied seeing any shooting and said he only did it because Lisa told him and that she would give him some money also" 290 A note in the handwriting of Mr Band dated 29 June 1992 recorded that Mr Band had received that day from Mr Gregorie inter alia a copy of the report by Detective Osborn of 5 May 1992. Accordingly, Mr Band was made aware of Detective Osborn's report. 291 In her evidence Ms Calzon asserted that Mr Gersten had never been on "bail" or on a "bond" and that there had never been any order of a Florida court requiring him to return to Florida or requiring him to report to the Dade County gaol. She maintained that Mr Gersten was not a "fugitive from justice". 292 A vast number of documents out of the State Attorney's Office files on Mr Gersten were tendered through Ms Calzon. These documents included bundles of documents relating to:- (i) Tape recordings made by the Federal Bureau of Investigation of telephone calls by Claudia Lira and Lisa McCann to Mr Gersten on 1 May 1992 and 3 May 1992. These recordings did not contain any admission of misconduct by Mr Gersten. (ii) Payments of living expenses and other payments made to Claudia Lira and Kenneth Elswick in May and June 1992 by the State Attorney's Office and by the Corrections and Rehabilitation Department ("inmate deposits"). (iii) The investigation of the alleged Gersten offences. (iv) Lisa McCann (v) Mr Rodriguez, who was an employee in Mr Gersten's office. (vi) Claudia Lira (vii) Mabel Smart, who was Mr Gersten's secretary. (viii) Robert Maldonado. (ix) Robert Cabanas (x) Maria Silva, a housekeeper who worked for Rosario Kennedy. (xi) Neighbours of Mr Gersten, particularly a Mrs Ichovitz, who provided information arguably supporting Mr Gersten's account of parking his car at the front of his house on the evening of 29 April 1992. (xii) The gold chain which Mr Gersten had allegedly been wearing on the night of 29 April 1992 but which Mr Gersten said had been left by him in a briefcase in the car. (xiii) Kenneth Elswick. (xiv) The recovery of Mr Gersten's car. 293 Ms Calzon gave evidence that she had attended numerous hearings before the Referee. She said that the only material before the Referee was the contempt order. She had made applications to the Referee with a view to amplifying the evidence before the Referee but all of her applications were opposed by the Florida Bar and were "stricken". 294 Ms Calzon said that she had in the United States a complete transcript of the proceedings before the Referee. However, this transcript was never produced. The only transcript of the proceedings before the Referee which was put in evidence before me consisted of the four pages I have previously referred to. 295 Ms Calzon gave evidence, in conflict with evidence given by Mr Hendrix, about which of them had initiated the possibility that Mr Gersten make an admission of minor misconduct. I do not find it necessary to resolve this conflict. 296 Ms Calzon as a Florida lawyer said that a person was a "fugitive from justice" under Florida law, only if he had been convicted of a crime and had fled while awaiting sentence. By this criterion Mr Gersten was not a "fugitive from justice". 297 Ms Calzon said that if Mr Gersten were to return to Florida, he would be arrested and imprisoned pursuant to the writ of bodily attachment. The limitation period for any prosecution of the car thieves having run, any attempt by the State Attorney's Office to question Mr Gersten about the theft of his car could not be for the purposes of a prosecution of the car thieves. Accordingly, in Ms Calzon's opinion, it was impossible for Mr Gersten now to comply with Judge Dean's contempt order. 298 Ms Calzon referred to a document in Mr Band's handwriting which she had located in the State Attorney's Office files (Calzon exhibit 96), in which Mr Band had listed many matters on which, it could be inferred, Mr Band had proposed to question Mr Gersten. 299 In cross-examination Ms Calzon said that, when the State Attorney's Office had distributed copies of the documents in its files, she had received five boxes of documents. She said that she had spent hundreds of hours working on the documents. The documents which had been tendered through her in the proceedings before me represented only a small percentage of the total documents. However, she asserted that the documents tendered through her represented all of the documents relevant to such issues as whether the State Attorney's Office had perpetrated a fraud on the courts in Florida and whether Mr Gersten had been the target, and not the victim, in the investigations which had been carried on by the State Attorney's Office. 300 Ms Calzon said that she had acted for Mr Gersten since mid 1993. He had been a pro bono client and she had never been paid for the work she had done for Mr Gersten. 301 Ms Calzon gave evidence about the order made by Judge Brown on 24 September 1993. She said that the order was not appellable and was of "limited application", until it was "rendered", that is reduced to writing and filed with the court clerk. She said that on 24 September 1993 Judge Brown had merely asked that Mr Gersten appear in court on the later date. However, in a petition for a writ of prohibition dated 1 October 1993 which had been prepared by Ms Calzon, it was alleged that "an order was rendered for the petitioner (Mr Gersten) to surrender himself at Dade Co Jail on October 4, 1993 at 9am". Ms Calzon claimed in her evidence that this allegation in the petition was an error on her part. 302 Ms Calzon was cross-examined about whether Mr Gersten might return to the United States and what might happen, if he did. She said that, to the best of her recollection, it was in October 1993 that Mr Gersten had first informed her that he intended never to return to the United States. She was then cross-examined about having said at the meeting of the first grievance committee on 7 March 1994, in response to a question whether Mr Gersten wished to testify in the grievance proceedings:- "If they are prolonged to when he returns, yes". 303 In Ms Calzon's opinion, if Mr Gersten returned to the United States, he would not receive a fair trial in the United States. She gave some further evidence as follows:- "Q. And your evidence to this Court is, as an attorney in Florida, that were Mr Gersten to return to the United States and to take whatever steps you may advise him to take to have the issue of his civil contempt reviewed because of the statute of limitations, that he would not get a fair hearing in any court in the United States. Is that your evidence? A. Yes. Q. And it is your evidence to this Court that in your opinion all the courts that have been involved in Mr Gersten's litigation have acted in an evil manner? A. I don't believe the courts have, I believe the State Attorney's Office and other people have acted under the auspices and using the name of the Court in order to persecute Mr Gersten". . . . A. … I believe that had Judge Dean known for example of the murder file where…. There were attempts to frame Mr Gersten, if Judge Dean had known of the contradictions, she wouldn't have entered that order. If she had known specific questions that Mr Band was attempting to ask Mr Gersten, that were totally irrelevant to any issue in that case, I don't believe she would have entered such an order…. Q. If you have that confidence, Miss Calzon, that Judge Dean would not have taken the action that she did, if she knew what you say emerges from the State Attorney's files, why is it, in your opinion, that Mr Gersten would not get a fair trial in the courts in the United States, were he to return and raise exactly those matters before an appropriate American Court? . . . A. If the question is whether at this point in time Judge Dean's order of contempt could be officiated or somehow quashed or vacated by some Court, I can't say that such a process would not be successful. But there are other considerations involving Mr Gersten and not just Judge Dean's order. You have Mr Gregorie who is still an assistant US Attorney who has instigated grand jury proceedings against Mr Gersten on matters that we're not even aware of, so you have other people and other issues coming after Mr Gersten and not just pursuant to Judge Dean's order". 304 Mr Calzon was asked questions in cross-examination about the hearing before Judge Sigler last year. In argument before Judge Sigler Mr Rosenblatt for the State Attorney's Office submitted that Mr Gersten's "flight" to Australia might be an independent contempt of court. In the transcript of the argument before Judge Sigler the following exchange between the court and Mr Rosenblatt occurred:- "THE COURT: May I ask you a question? MR ROSENBLATT: Yes, ma'am. THE COURT: If Mr Gersten was to appear through the back door and apologise to the Court and say he was ready to give a statement, then would that satisfy -- MR ROSENBLATT: As far as the Court is concerned -- THE COURT: -- your argument? MR ROSENBLATT: If that satisfies the Court, that satisfies the State Attorney". 305 Later in her cross-examination Ms Calzon maintained that there was no legal avenue in the United States by which Mr Gersten could seek to have Judge Dean's contempt order reviewed in the light of the changed circumstances. 306 The following questions and answered occurred in Ms Calzon's cross-examination. "Q. … Let us assume for the sake of the argument that Mr Gersten returns to the United States and is taken into custody at Miami airport, it would be open to you, would it not, knowing that he was to return to the United States, to have a writ of habeas corpus ready and for you to proceed expeditiously to have an appropriate Court deal with the application for habeas corpus? A. Yes. Q. And you would expect that that application would be dealt with by the Court expeditiously, would you not? A. Yes". 307 However, elsewhere in her evidence Ms Calzon said:- "You would suggest that Mr Gersten should return, be shackled, be put in chains, be gaoled to allow me the opportunity of the possibility that some court that has, up until now, not shown any ability to give him a fair trial, perhaps issue me a writ of habeas corpus. I believe the consequences to Mr Gersten are too great and the possibility of relief too slight". 308 I accept the evidence by Ms Calzon which I have just summarised, insofar as it is evidence of facts within her own direct knowledge. I take into account her opinion evidence. Mr Osborn 309 Mr Osborn a retired Miami police officer gave brief evidence by video link that in April and May of 1992 he had investigated the murder of Greg Wellons and had prepared the report of 5 May 1992, which he had delivered to the State Attorney's Office. I accept Mr Osborn's evidence. Dr McNaughtan 310 Dr McNaughtan is an Australian medical practitioner. He has devoted much time over the years to supporting what he considers to be good causes, including the East Timor independence movement, human rights in Central America and Aboriginal health in rural Australia. He first met Mr Gersten in Australia through their mutual activities in the East Timor independence movement. Since meeting Mr Gersten, he has supported Mr Gersten, both by his actions and financially, because he has perceived Mr Gersten as being the victim of an injustice. I accept that Dr McNaughtan has supported Mr Gersten, not for the sake of any personal gain, but out of altruism of a very high order. 311 Much of Dr McNaughtan's oral evidence was concerned with the proceedings in the Federal Court and the documents for which exemption had been claimed under the Freedom of Information Act by the Department of Immigration and Multicultural Affairs and the Australian Federal Police, which I have referred to as "the exempt documents" and which were referred to in some of the evidence before me as "the X files". In view of the conclusions I will state later in this judgment, it is unnecessary for me to refer to much of this evidence. 312 After Mr Gersten had in April 2000 come into possession of the exempt documents, he provided copies of the documents to Dr McNaughtan and asked Dr McNaughtan to make an analysis of the documents for him. Dr McNaughtan, of his own motion and at his own expense, decided to go to the United States, taking the documents with him, in order to carry out his own investigation and to place the documents before a United States Congressional Committee on Government Reform. 313 Dr McNaughtan went to the United States in May 2000. He spent some time in Miami, investigating Mr Gersten's case. He went to Washington and had meetings with the chairman of the House of Representatives Committee on Government Reform and the chief counsel to the Committee. He handed over his copies of the X documents to the Committee. While he was in the United States, Dr McNaughtan was informed of Whitlam J's orders for the return of the documents. Dr McNaughtan then spoke to the chief counsel of the Congressional Committee, who told him that an order of an Australian court could not bind the United States Congress and the Committee would retain the documents Dr McNaughtan had delivered to it. 314 Dr McNaughtan remained in the United States until late July or early August. After leaving the United States but while he was still overseas, he learnt that the State Attorney's Office files had been opened to the public. He made a second visit to the United States, remaining there from late August to late November 2000. He spent this period working on Mr Gersten's case and particularly on the documents in the State Attorney's Office file. 315 A very large number of documents of varying degrees of possible relevance, which had been obtained by Dr McNaughtan from various sources, including but not being limited to the State Attorney's Office files, were tendered and admitted through Dr McNaughtan. Counsel for the Law Society objected to the tender of most of these documents. 316 I accept Dr McNaughtan's evidence, insofar as it is evidence of facts within his direct knowledge. Mr Rosenblatt 317 Mr Joel David Rosenblatt made an affidavit for the defendant and gave oral evidence. 318 Mr Rosenblatt is an Assistant State Attorney for the Eleventh Judicial Circuit of Florida and has been employed in the State Attorney's Office since 1982. He appeared for the State Attorney on a number of the appeals brought by Mr Gersten. Mr Rosenblatt said that Mr Gregorie and Mr Band are no longer with the State Attorney's Office. 319 In July 2000, after a Florida television channel had made a request for access to the Gersten files within the State Attorney's Office, Mr Rosenblatt inspected the Gersten files in the State Attorney's Office and concluded that, "as a result of the application of the Statutes of Limitation the investigations which were previously conducted by the State Attorney's Office could no longer lead to prosecutions" and consequently the State Attorney's files should be opened to public inspection, pursuant to provisions of Florida's public records legislation. Mr Gersten so informed the State Attorney. 320 In his affidavit Mr Rosenblatt replied to a number of assertions made in their affidavits by Ms Calzon and Dr McNaughtan about difficulties they said had been put in their way in gaining access to, and inspecting, the Gersten files at the State Attorney's Office. I do not consider that it is necessary to attempt to resolve any of these conflicts in the evidence. 321 Mr Rosenblatt was asked why Kenneth Elswick had not been prosecuted, simply on the basis of the "confessions" he had made to the State Attorney's Office. He replied:- "…he gave a couple of statements. The very detailed confession that he gave was given under a grant of immunity by Mr Gregorie. Mr Band did not have access to that. That was on the other side of the Chinese wall that we had set up, so that we could prosecute Mr Elswick without reliance upon the immunised statement that he had given". 322 In other parts of his evidence Mr Rosenblatt appeared to say that he did not really know what statements Elswick had made or whether they were immunised. 323 Mr Rosenblatt gave evidence that under the Constitution of the State of Florida and under Florida Statute law the Governor of the State has a discretionary power to suspend from office a public official who has been arrested or indicted for a felony. Mr Rosenblatt was not aware of any case in which a Governor had suspended a public official because the public official had been charged with perjury. 324 Mr Rosenblatt was cross-examined about the width of the questions which Mr Band had apparently wished to ask Mr Gersten. Mr Rosenblatt said:- "If the prosecutor is attempting to determine the witness's memory, truthfulness, reputation, you ask questions in various areas which are not technically relevant to the incident at hand". 325 Mr Rosenblatt said later in his evidence that a person subpoenaed to testify before the State Attorney could object to the scope of the examination as being a fishing expedition. He said;- "When Mr Band was posing the questions I was not working with him. I didn't get the case assigned to me until afterwards, so I don't know what was in his mind at the time he asked the questions". 326 The following question and answer occurred in Mr Rosenblatt's cross-examination:- "Q. In relation to an investigation designed to charge the car thieves with car theft or robbery are you able to suggest what possible relevance might be questions as to the colour of the shoes, socks and underwear which Mr Gersten was wearing on that day? A. If Mr Band had knowledge of statements in which people had said that he was wearing coloured shoes, socks or underwear, that may establish, corroborate, the statements". 327 Mr Rosenblatt was questioned about the suggestion he had made that the State Attorney's Office might have wished to prosecute Elswick for robbery, as distinct from theft. Mr Rosenblatt agreed in cross-examination that Mr Gersten had not alleged that he was robbed of his car. Mr Rosenblatt's understanding was that some information had been received by the State Attorney's Office that Elswick and Lira had robbed Mr Gersten of his car by producing a knife and demanding that Mr Gersten hand over the keys to his car. 328 Mr Rosenblatt considered that Mr Gersten was a "fugitive from justice", because "he is not in the Dade Co Jail. He is not serving the sentence that the judge ordered" and because Mr Gersten had not complied with the order made by Judge Brown on 24 September 1993. Mr Rosenblatt maintained that the oral order made by Judge Brown was enforceable, even if it had not been "rendered". Mr Rosenblatt accepted that the writ of bodily attachment was not itself a court order directed to Mr Gersten and that there was no court order requiring Mr Gersten to return to Florida. 329 Mr Rosenblatt was pressed in cross-examination about what "further order" the District Court of Appeal had made. On 12 April 1993 the District Court of Appeal had stayed the incarceration of Mr Gersten "through the duration of this appeal and pending further order of this Court". Mr Rosenblatt referred to the mandate of the District Court of Appeal of 13 July 1993, whereby the Court had commanded that further proceedings be had in accordance with the opinion of the Court and the rules of procedure and laws of the State of Florida. 330 Mr Rosenblatt resisted a suggestion put to him by cross-examining counsel that Judge Brown's (oral) orders and the writ of bodily attachment "replaced" Judge Dean's contempt order. Mr Rosenblatt's interpretation of what Judge Brown had done was:- "What he did was say, 'comply with Judge Dean's order. Be incarcerated in Dade County Jail in accordance with Judge Dean's order, now that the stay is lifted'". 331 Mr Rosenblatt was questioned about the writ of alias capias and the writ of bodily attachment issued by Judge Brown on 4 October 1993. Mr Rosenblatt gave evidence that under Florida law a judge may issue a warrant for the arrest of a person where that person is in contempt of the court, including civil contempt of court, and the court has reason to believe that the person will not appear (voluntarily) before it. 332 If Mr Gersten as a subpoenaed witness had answered questions put to him by Mr Band, he would have had use immunity and derivative use immunity but would not have had any immunity for perjury. 333 Mr Rosenblatt accepted that, if Mr Gersten had made untrue admissions to Mr Band in accordance with the allegations of the car thieves and had then been charged by Mr Gregorie with the alleged Gersten offences, then Mr Gersten would not have been able to give sworn evidence denying the allegations of the car thieves, without exposing himself to a charge of perjury. In re-examination Mr Rosenblatt said that the "preferred option" for Mr Gersten would have been to tell the truth to Mr Band and defend any subsequent perjury charge. 334 Mr Rosenblatt was cross-examined about the hearing before Judge Sigler on 6 October 2000. Before Judge Sigler Mr Rosenblatt had spoken of Mr Gersten's "flight", by which he meant "his refusal to come back upon being requested by the Court… there was no order directing him to return…. There was an oral direction by Judge Brown to appear before him and an oral direction by Judge Brown to his counsel directing that he surrender to Dade Co Jail". 335 Mr Rosenblatt had told Judge Sigler that "the issue of whether or not he (Mr Gersten) committed a separate contempt by his flight and violation of his conditions of release on 'bail', that is an open question". Mr Rosenblatt conceded that Mr Gersten had never been on "bail" and that he should not have used the word "bail" before Judge Sigler. Before Judge Sigler Mr Rosenblatt had said:- "He (Mr Gersten) can still answer the questions. The order is still capable of being complied with". 336 Mr Rosenblatt said that the State Attorney's Office had resisted the motion to quash the writ of bodily attachment on the grounds (1) that Mr Gersten was in contempt of court and (2) that he was a fugitive from justice. 337 It is apparent that much of the evidence given by Mr Rosenblatt which I have summarised was argumentative or evidence of opinion. Mr Billy Jack Hendrix 338 Mr Billy Jack Hendrix, formerly the Director of Lawyer Regulation for the Florida Bar, made affidavits for the defendant and gave oral evidence. 339 Between about 15 March 1995 and 28 February 1998 Mr Hendrix was the Branch Staff Counsel for the Miami Office of the Florida Bar. During this period he had had the day to day conduct or supervision of the Florida Bar's disciplinary proceedings against Mr Gersten. 340 Mr Hendrix gave evidence that on or about 29 June 1995 Florida Bar file 92-71435 (11M) was closed and a new file designated 95-71604 (11M) was opened. In one of his affidavits Mr Hendrix denied that there was anything sinister about the closing of the earlier file and the opening of the new file. He offered the explanation that, if the old file had remained open, he would have had to have included it in his "exception report", as a file which had not been moved through the grievance process in accordance with prescribed time guidelines. 341 In presenting the case of the Florida Bar to the grievance committee in 1995, Mr Hendrix had decided to limit the Bar's case to what he considered was "the strongest issue", that is whether Mr Gersten had failed to comply with a valid court order. 342 In an affidavit Mr Hendrix asserted that it was Ms Calzon, and not he himself, who in October 1995 had raised the possibility of the complaint against Mr Gersten being dealt with by an admission of minor misconduct and that he, as a person familiar with the correct form for an admission of minor misconduct, had submitted to Ms Calzon, at her request, a draft admission of minor misconduct. As I have previously indicated in this judgment, Ms Calzon gave evidence conflicting with the evidence by Mr Hendrix which I have just summarised. However, I do not find it necessary to resolve the conflict. I accept evidence by Mr Hendrix that both before and after October 1995 he considered that Mr Gersten's conduct merited nothing less than disbarment or a long term suspension. 343 Mr Hendrix was cross-examined by counsel for Mr Gersten. 344 He was cross-examined generally about Florida Bar files, monitor files and exception reports. 345 In cross-examination Mr Hendrix said:- "Well, the previous file, the file in 1992, had gone to a live grievance committee hearing. I, as bar counsel, was not going to continue with a live grievance committee hearing, so that part of the file that had been submitted, the transcripts that came from that hearing, any evidence that had been submitted at that hearing was not going to be a part that went forward. Because I had a very simple case; did Mr Gersten obey Judge Dean's order or not, nothing else was relevant from my side of the case. That's what I wanted to proceed with. That was the only rule I wanted to proceed with. That was the issue I was presenting before this grievance committee. As simple as that". 346 Later in his evidence Mr Hendrix said that previously there had been issues about the disappearance of Mr Gersten's car and his whereabouts on the night of 29 April 1992; however;- "I abandoned or dropped, as the Bar counsel, those issues - they were no longer before the committee. The committee was not going to decide whether Mr Gersten was at a crack house or Mr Gersten's car was stolen or not. That was not the issue. The only issue presented forward going was, did he obey the order and that testimony (given before the grievance committee in 1994) had nothing to do with whether he obeyed the order". 347 Mr Hendrix had a dual role in the disciplinary proceedings. He represented the Florida Bar before the grievance committee. However, he was also counsel to the committee, advising the committee. He had contacted the chairman of the committee who, with the concurrence of other members of the committee, had agreed with Mr Hendrix that Mr Gersten's case (that is, the case against Mr Gersten) was "a simple, very simple, case". 348 Mr Hendrix asserted that he would have presented the Florida Bar case against Mr Gersten in the same way, even if the 1992 Bar file had not been closed and Mr Hendrix had been proceeding in relation to that file. He would still have adopted the position that the transcript of the evidence give by Mr Rosenblatt at the hearings on 18 January 1994 and 7 March 1994 would have been irrelevant to the only issues the committee now had to determine. 349 Mr Hendrix was cross-examined about the correspondence between him and Ms Calzon from 29 June 1995 onwards. Mr Hendrix agreed that the assertion in his letter of 10 July 1995 that the new file "contains the same information, allegations and rule violations as the previous and is the same in all respects except for the file number" was "poorly worded". However, he maintained that in subsequent correspondence he had made it clear what rule violation would be relied on by the Bar and what information the Bar would be submitting to the grievance committee. 350 Mr Hendrix said that the inclusion in the index of materials attached to his letter of 2 October 1995 of the words "referred to therein" had been a mistake on his part; he had never intended to present to the committee every document referred to in Ms Calzon's letter of 29 September 1995. 351 At times in his evidence Mr Hendrix said that he thought the material Ms Calzon had wished to rely on had in fact got before the grievance committee on 10 October 1995; but he also said:- "I have no personal knowledge that it was actually delivered to the chair, except what Ms Calzon's letters said and knowing the procedures of the Committee". 352 Mr Hendrix was further cross-examined about his assertion that the only issues, as he saw them, in the disciplinary proceedings were, whether an order had been made and had remained in existence, whether Mr Gersten had refused to comply with the order, whether he had been held in contempt of court and whether he had purged his contempt and that the facts and circumstances surrounding Mr Gersten's refusal to comply with Judge Dean's order were irrelevant. Mr Hendrix was referred to part of the preamble to the Rules of Professional Conduct of the Florida Bar which provides:- "Failure to comply with an obligation or prohibition imposed by a rule, is a basis for invoking the disciplinary process. The rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question, in recognition of the fact a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the rules presuppose that whether discipline should be imposed for a violation, and the severity of the sanction depend on all the circumstances, such as the wilfulness and seriousness of the violation, extenuating factors, and whether there have been previous violations". 353 Mr Hendrix had argued before the grievance committee that no other circumstances, apart from those comprised in the issues as he saw them, were relevant to the committee's deliberations. Mr Hendrix had taken the position that it was for Mr Gersten to present any case based on extenuating surrounding circumstances. In any event, the only function of the grievance committee was to determine whether there was probable cause, not to decide guilt or to impose or even recommend a sanction. 354 Mr Hendrix initially said that all the appeal courts had said "Mr Gersten, all this stuff you are telling us is not true". However, Mr Hendrix immediately said that he had "misspoke"; the various appeal courts had not made findings of fact but had merely considered legal arguments. 355 Mr Hendrix had appeared for the Florida Bar before the Referee. Mr Hendrix's basic case before the Referee was the same as it had been before the grievance committee. Before the Referee Ms Calzon for Mr Gersten had attempted "to get a lot of documents in, to subpoena a lot of witnesses" but the Referee had denied most of her requests. 356 Mr Hendrix had not considered that a belief on Mr Gersten's part that he was the victim of conspiracies and persecution was, irrespective of the truth of his belief, a relevant matter. 357 Mr Hendrix said that his interpretation of Rule 4.3 4(c) was that a lawyer could rely on the exception expressed in the Rule for so long as his assertion that no valid obligation existed was the subject of an appeal which had not yet been decided. "From the date of the (determination of) the last appeal onwards, a lawyer could not rely on the exception". 358 Subject to the qualifications I have expressed, I accept Mr Hendrix's evidence which I have just summarised. Other Witnesses 359 Mr Stevens of Senior Counsel, Mr Grey and Mr Coombs of Junior Counsel and Mr Lee, solicitor, gave evidence about the exempt documents ("the X files") and the Federal Court proceedings. However, it is unnecessary to refer further to this evidence. Affidavits were made by officers of the Law Society, Mr Collins and Mr Pierotti. It is also unnecessary to refer to these affidavits. I have already referred to some of the annexures or exhibits to these affidavits. ADJUDICATION Submissions 360 Counsel for both parties made lengthy written and oral submissions. The plaintiff's written submissions in chief occupied 163 pages. The defendant's written submissions were shorter but still extensive. The making of oral submissions lasted four days. 361 Because of the size, complexity and detail of the submissions both written and oral, it is impossible to summarise all of the submissions which were put to me. However, it seems to me that the principal submissions made by the parties can be summarised as follows. 362 It was submitted by counsel for the plaintiff in his written submissions in chief that I should find that:- 363 1. The plaintiff was a person generally of good character 364 2. The plaintiff had disobeyed a court order in Florida in extraordinary circumstances, in that he had believed that he was the victim of an investigation being carried out in bad faith by the State Attorney's Office and that belief was either true or was at least a belief honestly held by him on reasonable grounds. The circumstances in which the plaintiff had disobeyed the court order in Florida were unlikely to be repeated in New South Wales. The plaintiff's disobedience of the court order in Florida was not indicative of a general attitude on his part that court orders need not be obeyed. 365 366 3. The capacity of the courts in Florida to render justice to the plaintiff had been impaired by the reluctance of the courts to intervene in a criminal investigation purportedly being carried on by the State Attorney's Office and by the unavailability to the courts in Florida of the documents in the files of the State Attorney's Office which had now been made public. This Court in New South Wales was the first court which had had the opportunity of considering the new evidence. If Mr Gersten were to return to Florida, he would not be able to obtain justice, or at any rate full justice, in the courts in Florida. 367 4. In the disciplinary proceedings against the plaintiff in Florida, the Florida Bar had adopted an improperly narrow view of what factors were relevant, if not in determining whether the plaintiff was guilty of professional misconduct, then in determining what would have been an appropriate sanction or penalty. 368 5. Pt 65A r 3, on its true interpretation, did not impose a burden of proof on the plaintiff. 369 6. Pt 65A r 3 does not itself specify the factors to which the Court should have regard in deciding whether it should "otherwise order", and the factors to which the Court should have regard are not limited, in the present case, to whether Mr Gersten had deliberately disobeyed a court order made in Florida and had been held in contempt of court for his disobedience and had not purged his contempt, but included all the surrounding circumstances and particularly whether Mr Gersten had actually committed the alleged Gersten offences, whether the State Attorney's Office had in fact conducted an investigation in bad faith for the purpose of harming Mr Gersten and whether Mr Gersten had honestly believed on reasonable grounds that the State Attorney's Office had been conducting an investigation in bad faith for the purpose of harming him and because of that belief Mr Gersten had disobeyed the court order. 370 7. Mr Gersten did not commit the alleged Gersten offences. 371 8. The State Attorney's Office conducted an investigation in bad faith for the purpose of harming Mr Gersten. 372 9. Mr Gersten honestly believed on reasonable grounds that the State Attorney's Office was conducting an investigation in bad faith for the purpose of harming him and it was because of that belief that Mr Gersten had disobeyed the court order. 373 10. The alleged misconduct by Mr Gersten in New South Wales should not be taken into account in the present proceedings. 374 It was submitted by counsel for the defendant in his written submissions that:- 375 1. On the true interpretation of Pt 65A r 3, the onus of proof rested on the plaintiff. 376 2. Although the factors which a court should take into account, in deciding whether it should exercise the power under Pt 65A r 3 to "otherwise order", are not specified in the rule, the relevant factors in the present case were, or at least included, the following:- 377 (i) The nature of the Tribunal which had made the order of suspension outside New South Wales, that is the Supreme Court of Florida, which is the highest court in the State of Florida in the United States of America. 378 (ii) The nature of the conduct outside New South Wales for which Mr Gersten had been suspended from practicing in Florida, that is deliberate, sustained disobedience of a court order. 379 (iii) The history and nature of the court proceedings and the disciplinary proceedings in Florida, including that they were of a like nature to corresponding proceedings in New South Wales and including, in particular, that the Supreme Court of Florida, which had made the order suspending Mr Gersten from practicing in Florida, had ruled that the Referee had properly precluded Mr Gersten from attempting to "go behind the order of contempt", so as to have an inquiry before the Referee into whether Mr Gersten had committed the alleged Gersten offences and whether Mr Gersten had been the victim of an investigation in bad faith by the State Attorney's Office. 380 (iv) Considerations of international comity, which should lead a New South Wales court to exercise restraint and caution before making any findings that public officials in Florida had acted dishonestly or improperly, that decisions of courts in Florida were erroneous or flawed or that, if Mr Gersten were to return to Florida, he would be unable to obtain justice in the court of Florida. 381 (v) The availability in Florida of a more appropriate forum than this Court for any consideration of the new evidence disclosed by the opening of the State Attorney's Office files. Courts in Florida would be able to decide whether, in the light of the new evidence and having regard to supervening circumstances, the contempt order and the suspension order should be discharged or varied. 382 (vi) The inappropriateness of this Court as a forum for the determination of many of the issues which counsel for the plaintiff was urging this Court to determine. 383 (vii) The plaintiff's conduct in New South Wales in relation to the exempt documents. 384 It was submitted by counsel for the defendant that whether Mr Gersten had actually committed the alleged Gersten offences, whether the State Attorney's Office had conducted an investigation in bad faith and whether Mr Gersten believed, on reasonable grounds or without having reasonable grounds, that the State Attorney's Office had been conducting an investigation in bad faith for the purpose of harming him, were not relevant factors. 385 It was submitted by counsel for the defendant that, apart from considerations of comity, there were a number of other considerations, such as this Court's lack of familiarity with practices and procedures in Florida, the nature of the present proceedings, the requirements of procedural fairness, the absence of evidence from many persons who could obviously have given relevant evidence and the difficulties and dangers of safely drawing inferences from documents, which would properly cause this Court to exercise considerable caution and restraint before making the findings which counsel for the plaintiff was urging the Court to make. 386 It seems to me that, in relation to some of the factors which counsel for the plaintiff submitted were relevant, had been established and should be accorded weight, counsel for the defendant made all or some of the following submissions:- 387 (i) The factor was irrelevant to whether I should exercise the power under Pt 65A r 3 to otherwise order. 388 (ii) Having regard to the considerations mandating caution and restraint, I should not even attempt to determine whether the factor had been established. 389 (iii) The plaintiff had failed to discharge the onus, which counsel for the defendant submitted rested on the plaintiff, of proving that the factor existed. 390 (iv) Even if the factor was not wholly irrelevant and had been established, nevertheless little weight should be given to it. 391 In oral argument counsel for the Law Society agreed with a comment made by me about his written submissions. My comment was:- "I think it is right to say that the general approach taken by the defendant is that I should not interfere, but I should simply dismiss the application, and if Mr Gersten wants to do anything, he can go back to Florida and he can seek, in Florida, to have the suspension removed or varied". 392 Counsel for the plaintiff's written submissions in reply were divided into four parts. 393 In part A counsel pointed to the absence of factual analysis in counsel for the defendant's written submissions and submitted that I should infer that there was no criticism apparent to the Law Society of the factual analysis which counsel for the plaintiff had made in his written submissions in chief. 394 In part B counsel for the plaintiff replied to counsel for the defendant's contention that I should leave the plaintiff to "argue it in Florida". In this part of his submissions in reply counsel for the plaintiff made submissions about the absence of witnesses who could have given relevant evidence, the drawing of inferences from documents which were in evidence, the requirements of procedural fairness and what were submitted to be reasons "for determining the matter here" and not in Florida. 395 In part C counsel for the plaintiff made submissions about the proper interpretation of Pt 65A r 3 and the weight which should properly be given to the factor of considerations of comity. 396 In part D headed "Factors Relevant to the Exercise of Discretion" counsel for the plaintiff submitted that the circumstances in which Mr Gersten had disobeyed the court order in Florida were relevant to the exercise of the power under Pt 65A r 3 to otherwise order. It was submitted inter alia that Judge Dean had erred in fundamentally misunderstanding the nature of the perjury trap which the plaintiff was alleging. 397 In part E of the submissions in reply counsel for the plaintiff replied to submissions made by counsel for the defendant about the exempt documents. Interpretation of Pt 65A r 3 398 A matter of considerable importance is the proper interpretation of Pt 65A r 3; whether it imposes an onus of proof on the legal practitioner asserting that the court should "otherwise order" and what factors are relevant in determining whether the court should "otherwise order". I will deal first with the question of the onus of proof. 399 Both parties referred me to Patel v The Law Society of New South Wales (1999) NSWCA 372 in which Mason P speaking for the Court said that self evidently Pt 65A r3 provides for an immediate and self executing effect to be given to a suspension from practice outside New South Wales. 400 Both parties also referred to a predecessor of Pt 65A r 3 being r 15 of the Solicitors' Practices Rules, which provided:- "Any solicitor of the Supreme Court of New South Wales who is on the Roll of Solicitors or Barristers and Solicitors of any State or Territory of the Commonwealth of Australia, or of any Court of the British Empire, or any Protectorate thereof or Mandated Territory thereof, or any part thereof, whose name shall have been or shall be removed from any such Roll by reason of his misconduct, or who shall have been or shall be suspended from practice as a Solicitor or Barrister and Solicitor of any such Court by reason of his misconduct, shall without any order of the Supreme Court of New South Wales, be suspended from practice as a solicitor in New South Wales, in the case of such removal as aforesaid until otherwise ordered by the Supreme Court of New South Wales, and in the case of such suspension as aforesaid during the period of such suspension". 401 It is to be noted that r 15 applied only to the removal or suspension of a solicitor in some other part of Australia or the British Empire or British Territories and it did not provide for the New South Wales Supreme Court otherwise ordering, in the case of a suspension, as distinct from a removal. 402 It was contended by counsel for the plaintiff that Pt 65A r 3, on its true interpretation, does not place an onus of proof on a legal practitioner who has been suspended for misconduct outside New South Wales to persuade the New South Wales Supreme Court that it should "otherwise order", that is, that the legal practitioner should not be suspended from practice in New South Wales during the period of suspension under the suspension outside New South Wales. 403 In support of this general contention it was submitted by counsel for the plaintiff that:- 404 (i) The rule did not provide that a legal practitioner should be suspended in New South Wales in accordance with the suspension outside New South Wales, "unless the legal practitioner satisfies the court that it should otherwise order". 405 (ii) If a person has been admitted to practice as a legal practitioner in New South Wales, as Mr Gersten has, the onus should be on any party asserting that the lawyer should be suspended from practice in New South Wales by reason of the suspension outside New South Wales. 406 (iii) Considerations of comity may have lain behind r 15 of the Solicitors' Practices Rules. However, considerations of comity should be given less weight in interpreting Pt 65A r 3, which applies to any suspension outside New South Wales and not just to a suspension in another part of Australia or in some other part of a community of which Australia is a part and which shares the common law. 407 (iv) If any burden rests on a legal practitioner who has been suspended outside New South Wales, it is some lesser burden than the burden of persuasion, for example, a burden of invoking the jurisdiction of the New South Wales Supreme Court or the burden of adducing some evidence why the suspension outside New South Wales should not be replicated inside New South Wales. 408 An alternative submission made by counsel for the plaintiff was that under Pt 65A r 3 there is no onus on either party; the Court, without requiring either party to satisfy an onus, conducts an inquiry and determines whether a legal practitioner should or should not be suspended from practice in New South Wales in accordance with a suspension outside New South Wales. 409 It was finally submitted by counsel for the plaintiff that, if the onus of proof did rest on the legal practitioner of persuading the Court that it should otherwise order, the rule clearly contemplated that there could be cases in which it would be appropriate for the Court to otherwise order and the legal practitioner must be given the opportunity to attempt to discharge the onus and must be permitted to adduce evidence of the circumstances surrounding the suspension outside New South Wales. 410 In my opinion, Pt 65A r 3, on its proper interpretation places the onus of proof on the legal practitioner who has been suspended outside New South Wales for misconduct, to persuade the Supreme Court of New South Wales that it should "otherwise order", that is, that it should order that the legal practitioner not be suspended from practice in New South Wales in accordance with the suspension outside New South Wales. 411 I consider that this interpretation is required simply by virtue of the language in which the rule is expressed. The rule provides that a legal practitioner who is suspended from practicing as a lawyer outside New South Wales by reason of misconduct is suspended from practice in New South Wales during the period of the suspension "unless the court otherwise orders". As a matter of ordinary language, the rule lays down a general principle, which should only be departed from, if the legal practitioner can establish grounds which would justify a departure from the general principle. 412 The interpretation consistently given by the Court of Appeal to other rules in the Supreme Court Rules, for example Pt 52A r 22(4) which also include the expression "unless the court otherwise orders" gives some support to my interpretation of Pt 65A r 3. See for example Morgan v Johnson (1998) 44 NSWLR 578 at 581-2 per Mason P. 413 Some additional support for my conclusion that Pt 65A r 3 imposes a burden of proof on the legal practitioner can, in my opinion, be gained from what Mason P said in Patel v The Law Society of New South Wales, from having regard to the terms of the predecessor rule (even after allowing for differences between the two rules), considerations of international comity and the appropriateness of casting the burden of proof on the legal practitioner within whose knowledge the facts and circumstances of the suspension outside New South Wales are likely to be. 414 I turn to the question of what factors or matters are relevant to my deciding whether I should otherwise order. 415 The rule itself does not specify the factors or matters to which a court should or may have regard in deciding whether it should otherwise order. In the absence of any such specification, the Court, in accordance with general principle, should take into account such factors as appear to be relevant, having regard to the subject matter, nature and purpose of the rule. 416 Earlier in this judgment I listed the seven matters which counsel for the defendant in his written submissions submitted were relevant matters which should be taken into account in determining whether I should otherwise order. At least at times in his written and oral submissions counsel for the defendant appeared to me to be submitting that no other matters were relevant. As stated earlier, counsel for the defendant expressly submitted that whether Mr Gersten had actually committed the alleged Gersten offences, whether the State Attorney's Office had conducted an investigation in bad faith and whether Mr Gersten believed, whether on reasonable grounds or otherwise, that the State Attorney's Office was conducting an investigation in bad faith for the purpose of harming him were not relevant matters. 417 I do not consider that the only matters having any relevance are the seven matters listed by counsel for the defendant. The ways in which I could otherwise order would include ordering that Mr Gersten not be suspended from practice for any period in New South Wales; ordering that Mr Gersten be suspended from practice in New South Wales but for a lesser period than the period of suspension outside New South Wales; ordering that Mr Gersten's application be dismissed, so that Mr Gersten is suspended from practice in New South Wales for the same period as the period of suspension outside New South Wales. In deciding what order I should make I am concerned (leaving aside the onus of proof), not merely with whether Mr Gersten was guilty of professional misconduct in Florida (the question of guilt) but also with whether, if he was guilty of professional misconduct in Florida, he should be suspended from practice in New South Wales and, if so, for what period (the question of "sanction"). In my opinion, counsel for the plaintiff was correct in submitting that the matters he sought to rely on were possibly relevant, even if not to guilt, then at least to sanction. Many circumstances surrounding disobedience to a court order by a legal practitioner can be relevant to determining what is an appropriate sanction for the legal practitioner's disobedience to the court order. 418 Accordingly, I do not consider that I should hold that whether Mr Gersten actually committed the alleged Gersten offences, whether the State Attorney's Office conducted an investigation in bad faith to harm Mr Gersten and whether Mr Gersten believed that the State Attorney's Office was conducting an investigation in bad faith to harm him are irrelevant. Of course, it may still be the case that the plaintiff is unable to satisfy me that such a matter existed or, even if the plaintiff is able to so satisfy me, that the matter should be given any significant weight. Considerations Requiring Caution and Restraint 419 I have already referred to submissions made by counsel for the defendant that there were a number of considerations which would properly cause this Court to exercise caution and restraint before making the findings which counsel for the plaintiff was urging the Court to make. I accept that there are a number of matters which, particularly in combination, require this Court to exercise caution and restraint and militate against this Court making findings which counsel for the plaintiff urged it to make. These factors include:- 420 1. As I have held, the onus of proof under Pt 65A r 3 is on the plaintiff. 421 2. The standard of proof is proof on the balance of probabilities (Evidence Act s 140(1)). However, in deciding whether the plaintiff has discharged the onus of proof on the balance of probabilities, I must take into account, inter alia, the gravity of any matter alleged by the plaintiff (s 140(2)). Some of the allegations made by the plaintiff are grave, for example, the allegation that the State Attorney's Office (that is Ms Reno herself, Mr Gregorie, Mr Band, Mr Havens and others) conducted an investigation in bad faith for the purpose of harming Mr Gersten. The gravity of some of the allegations made by Mr Gersten makes it more difficult for him to satisfy the Court that it should find that the allegations have been established. 422 3. Considerations of international comity. 423 Counsel for the defendant referred the Court to a number of passages in judgments of the High Court, including the following:- 424 In Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538, a case dealing with the doctrine of forum non inconveniens, Mason CJ, Deane J, Dawson J and Gaudron J said in the course of their joint judgment at p559:- "Moreover, there are powerful policy considerations which militate against Australian courts sitting in judgment upon the ability or willingness of the courts of another country to accord justice to the plaintiff in the particular case. Those policy considerations are not dissimilar to those which lie behind the principle of 'judicial restraint or abstention', which ordinarily precludes the courts of this country from passing upon 'the provisions for the public order of another State': see generally Attorney-General (U.K.) v Heinemann Publishers Australia Pty Ltd " 425 In Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 Mason CJ, Wilson J, Deane J, Dawson J, Toohey J and Gaudron J in the course of their joint judgment referred to a principle which has long been recognised:- "..namely that, in general, courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within the sovereign's own territory. The statement of Fuller CJ in Underhill v Hermandez (1897) 168 U.S 250 at 252 that 'the courts of one country will not sit in judgment on the acts of the government of another done within its own territory' has been repeated with approval in the House of Lords ( Buttes Gas v Hammer (1982) A.C 888, at p. 933) and the Supreme Court of the United States: Banco Nacional de Cuba v Sabbatino (1964) 376 U.S. 398, at p. 416 ) . The principle rests partly on international comity and expediency. So, in Oetjen v Central Leather Co (1918) 246 U.S. 297, at p. 304) the Supreme Court said:- 'To permit the validity of the acts of one sovereign State to be re-examined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations'. As Lord Wilberforce observed in Butts Gas v Hammer (1982) A.C., at pp 931-932 in the context of considering the United States decisions, the principle is one of 'judicial restraint or abstention' and is 'inherent in the very nature of the judicial process". 426 In CSR Limited v Cigna Insurance Australia Limited (1996-1997) 189 CLR 345 at 395-396 Dawson J, Toohey J, Gaudron J. McHugh J, Gummow J and Kirby J in their joint judgment referred with approval to an explanation of comity given by the Supreme Court of the United States in Hilton v Guyot (1895) 159 U.S. 113 at 163-164:- "Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws". 427 Counsel for the defendant, while accepting that comity is not "a matter of absolute obligation", submitted that by virtue of considerations of comity this Court should pay respect to, and should exercise restraint in passing judgment on, the acts of government officials and the acts of judicial officers in the State of Florida. It was submitted that this Court should exercise restraint in making findings that government officials in Florida had acted in bad faith and for an improper ulterior purpose. It was also submitted that this Court should exercise restraint in "second guessing" courts in Florida, either by holding that decisions of courts in Florida had been erroneous or flawed, thereby acting as "a surrogate court of appeal" from the Florida courts, or by itself deciding questions which courts in Florida such as the Florida Supreme Court had deliberately abstained from deciding on the grounds that they were irrelevant. It was further submitted that this Court should not "anticipate" courts in Florida, by itself deciding questions which had not yet been decided by any court in Florida but which could be decided by some court in Florida and which would be decided much more appropriately by some court in Florida. 428 In response to these submissions by counsel for the defendant, counsel for the plaintiff submitted inter alia that:- 429 (i) Jurisdiction has been conferred on this Court under Pt 65A r 3 to order that a legal practitioner not be suspended in New South Wales in accordance with a suspension outside New South Wales and this Court should not decline to exercise jurisdiction which has been conferred on it. 430 (ii) The authorities referred to by counsel for the defendant made clear that comity is not a matter of absolute obligation. 431 (iii) Statements of the principle of comity recognise that the principle will not apply in certain cases, including where there has been fraud in the procuring of a foreign judgment or order or there is "any other special reason why the comity of this nation should not allow it (that is, the foreign act) full effect" (see Hilton v Guyot). 432 (iv) In the present case the plaintiff was asserting that fraud or something akin to fraud had occurred in the procuring of the contempt order or, at least, there was a "special reason" why the principle of comity should not be applied. 433 (v) This Court should be careful not to be trapped in circular reasoning, abstaining out of deference to the principle of comity from inquiring whether, or finding, that some matter existed, which, if it did exist, would prevent the principle of comity from applying. 434 (vi) The plaintiff was not directly challenging the validity of the contempt order or the suspension order in Florida. The plaintiff was asking the Court to make findings about the contempt order and the suspension order but only for the purpose of determining whether the plaintiff should be suspended from practice in New South Wales and, if so, for how long. 435 After taking the various submissions into account, I conclude that I should not, solely because of considerations of international comity, abstain from inquiring into whether, for example, the State Attorney's Office conducted an investigation in bad faith for the purpose of harming Mr Gersten, but I should exercise caution and restraint before making such a finding. I should exercise caution and restraint before holding that decisions of courts in Florida were erroneous or flawed and I should pay respect to the views of courts in Florida as to what matters were relevant to the issues before the courts. 436 4. Allied to considerations of international comity, is this Court's lack of familiarity with institutions, practices and procedures in Florida, which handicaps it in passing judgment on the acts of government officials and judges in Florida. This Court's lack of familiarity with such matters was brought home to the Court on a number of occasions during the hearing. I will give two examples. 437 Earlier in this judgment I noted that on 5 June 1992 a "disposition form" (Calzon exhibit 108) was completed in the State Attorney's Office, in which the defendant was identified as Kenneth Elswick and the offence was identified as "grand theft auto" and on which the words "no action" were written, on the grounds that the victim (Mr Gersten) had not appeared for a pre-file conference and on which the date June 5 1992 was written against the printed words on the form "date closed". 438 The contents of this disposition form were seized on by counsel for the plaintiff in his written submissions (pp 99-100). In his written submissions counsel underlined a submission that "everything that happened thereafter, supposedly as part of an investigation directed to prosecution of the car thieves, was in relation to a case in which Elswick had been arraigned and the case had been closed". 439 Counsel for the plaintiff proceeded to argue that, if the prosecution of the car thieves had been closed on 5 June 1992, then the subsequent attempts to require Mr Gersten to give evidence before Mr Band, supposedly as a witness in a prosecution of the car thieves, was "evidence of complete and total bad faith by those who have pretended that they still want Mr Gersten to answer questions about the events of April 29, 1992, so that they can prosecute the car thieves". 440 A copy of counsel for the plaintiff's written submissions was forwarded to Mr Rosenblatt in Florida, who read the submissions. Mr Rosenblatt, when he was in Australia giving evidence in these proceedings, had not been cross-examined about Calzon exhibit 108. 441 I permitted an affidavit by Mr Rosenblatt to be filed, in which Mr Rosenblatt, having read the copy of counsel for the plaintiff's written submissions, explained the significance in Florida of a criminal charge being designated "closed - no action". In his affidavit Mr Rosenblatt explained that in Florida, if a person is arrested for a felony, his case will appear in a judge's arraignment calendar twenty-one days from the date of arrest. At the arraignment the State Attorney has a number of options, one of which is to "no-action" the case, "which simply means to file no charge at that time". In his affidavit Mr Rosenblatt said inter alia:- "The only consequence of a decision to 'no action' a case is that the subject arrested and charged by the police cannot any longer be held in custody, and is therefore not required to post or continue to be on bail or bond. It remains entirely open to the State Attorney to file the felony charge against the same person at a later date. . . . If a material witness fails to attend a pre-trial conference, in such a case, the case may be no-actioned at arraignment and it will remain open to the State Attorney to file a felony charge at any later time prior to the expiration of the statute of limitations, if and when the testimony is obtained from the material witness. . . . The designation by the State Attorney's Office of police charges against such a person as 'closed - no action' is simply for internal State Attorney's Office purposes only, which reflects the position set out above in this affidavit. Thus, such a designation has no binding effect, unless the office chooses to let the police charges remain closed". 442 The additional information from Mr Rosenblatt (a person familiar with Florida law and practices and procedures in Florida), of which this Court was previously ignorant, threw different light on the disposition form and weakened what would, apart from this information, have appeared to be a powerful argument for the plaintiff. 443 A matter on which counsel for the plaintiff placed considerable reliance was the number and width of the questions Mr Band proposed to ask Mr Gersten. 444 A number of the questions which Mr Band wished to ask Mr Gersten were individually considered by Judge Dean on 17 March 1993. Mr Band indicated on 17 March 1993 that these questions were not all the questions which he wished to ask Mr Gersten. Among the documents disclosed when the State Attorney's Office files were opened for public inspection were a number of sheets of paper containing notes in the handwriting of Mr Band, which, it can be inferred, were notes of questions Mr Band wished to ask Mr Gersten. 445 Counsel for the plaintiff submitted that the only questions the answers to which by Mr Gersten would be required by Mr Band for the purposes of prosecution of the persons who stole Mr Gersten's car, would have been "were you the owner of the car?" and "did you give permission to anyone to take the car?" Counsel for the plaintiff further submitted that the number and width of the questions Mr Band wished to ask, the lack of relevance of many of them to a prosecution for the theft of Mr Gersten's car and the clear relevance of many of them to a prosecution of Mr Gersten for the alleged Gersten offences constituted strong evidence that the State Attorney's Office was acting in bad faith in seeking to examine Mr Gersten. 446 To an Australian lawyer counsel for the plaintiff's submissions might seem to have substantial force and it must be borne in mind that Judge Dean was not informed of many of the questions which Mr Band proposed to ask. 447 However, there are indications in the evidence that, under practices and procedures prevailing in Florida, the questions asked of a witness by the State Attorney's Office in a pre-filing conference may range widely, without giving rise to any inference that the State Attorney's Office is acting in bad faith. 448 Judge Dean took upon herself the task of ruling on the relevance of a number of the questions and held that many of these questions were relevant and should be answered. Her Honour told Mr Gersten on 17 March 1993 that "the questions that the State seeks to ask of you are no different (from) questions… that must be asked of any other witness to get background information". 449 In paragraph 7 of the contempt order her Honour said:- "It is important to note that at the pre-filing conference, which is what is sought in this case from Mr Gersten, it is usual for the Assistant State Attorney not only to seek facts which will assist them in the prosecution of their cases, but additionally which will aid them in determining what kind of a witness the victim will be during trial and whether they will fare well under the difficult experience of cross-examination". 450 This Court's lack of familiarity with practices and procedures in Florida makes it difficult for the Court to know whether the number and width of the questions Mr Band wished to ask Mr Gersten is evidence of an improper purpose on the part of the State Attorney's Office or simply reflects common practice in Florida. 5. The nature of and the parties to these proceedings. 451 The nature of, and the parties to, these proceedings make these proceedings inappropriate for the determination of many of the issues which the plaintiff is asking the Court to determine. The proceedings are proceedings brought by a legal practitioner in the Supreme Court of New South Wales for an order that he should not be suspended from practice in New South Wales during the period of a suspension from practice outside New South Wales under an order made by a court in the American State of Florida. The defendant, and the only defendant, to the proceedings is the Law Society of New South Wales, a professional association of lawyers in a State in Australia. 452 In my opinion, as was submitted by counsel for the defendant, what was said by Deane, Dawson, Toohey and Gaudron JJ in their joint judgment in Wentworth v N.S.W Bar Association (1992) 176 CLR 239 at 250 about admission and disciplinary proceedings, even though in relation to an application for admission as a barrister, is applicable to the present proceedings. Their Honours said:- "However, disciplinary and admission proceedings are alike in that they are not ordinary legal proceedings. Admission proceedings are not directed to the resolution of some contest as to the private rights of disputing parties, as is usually the case with civil proceedings. And as has often been said, disciplinary proceedings are not criminal proceedings. Disciplinary proceedings and admission proceedings are 'sui generis'. Disciplinary proceedings have been described as proceedings concerned with the protection of the public. And it has been said that, because they have the protection of the public as one of the primary objects, they cannot necessarily be determined on the same basis as adversarial proceedings". 453 As a defendant the Law Society, as it was entitled to do, sought to test certain parts of the plaintiff's case and adduced some evidence in putting a case of its own. See Wentworth v N.S.W Bar Association at 254-255. However, as was submitted by counsel for the Law Society, the Law Society should not be regarded as being in the same position as a defendant in ordinary adversarial litigation. 454 In any event, the Law Society was not a suitable opponent to contest many of the issues which the plaintiff is asking the Court to determine. The Law Society played no part whatever in any of the events involving Mr Gersten which occurred in Florida. The Law Society was unable to compel the attendance as witnesses of persons who reside in the United States. The Law Society is not an investigator or prosecutor of crime even in New South Wales, let alone Florida. Although the Law Society communicated with, and received assistance from, the State Attorney's Office of the Eleventh Judicial Circuit in Florida and the Florida Bar, the Law Society did not represent either the State Attorney's Office or the Florida Bar, neither of whom was a party to the proceedings before me, and the Law Society was ill equipped to perform the functions which would have been performed by the State Attorney or the Florida Bar, if they had been parties. 455 Proceedings in some court in Florida in which more suitable opponents than the Law Society of New South Wales are joined as parties would be far more appropriate for the determination of many of the issues which the plaintiff is asking this Court to determine. 456 6. Many persons who could obviously have given relevant evidence about issues which the plaintiff is asking this Court to determine did not give any evidence, whether by affidavit or orally, before this Court. None of the car thieves gave evidence. None of Ms Reno, Mr Gregorie, Mr Band and Mr Havens gave evidence. None of a large number of other persons about whom the plaintiff made allegations gave evidence. 457 Counsel for the defendant prepared a list of the names of persons against whom, somewhere in the evidence, some allegation of improper conduct was made by Mr Gersten. The list had forty-two names in it. As counsel for the defendant pointed out, the Law Society could not compel the attendance as witnesses of any of these people. 458 Counsel for the plaintiff submitted that of the persons in counsel for the defendant's list of forty-two persons, there were only a few really critical witnesses, consisting of the car thieves and some of the officials from the State Attorney's Office. It was submitted that the Law Society, as it was served with the affidavits on behalf of the plaintiff over the extended period between the commencement of these proceedings and the hearing, was put on notice that serious allegations were being made by the plaintiff, about which these persons would be able to give evidence; that the Law Society should have taken steps for the purpose of obtaining evidence from these persons; that evidence had in fact been obtained by the Law Society from Mr Rosenblatt of the State Attorney's Office and Mr Hendrix of the Florida Bar; that no evidence had been adduced by the Law Society of the taking of any steps to obtain evidence from other persons who could have given critical evidence; that it should be inferred that the Law Society had made a conscious decision to refrain from attempting to obtain evidence from these persons or that such evidence as the Law Society had obtained from such persons did not assist the Law Society in opposing Mr Gersten's claims. It was submitted that an inference adverse to the Law Society should be drawn in accordance with Jones v Dunkel (1958-9) 101 CLR 298. 459 I do not consider that any inference adverse to the Law Society should be drawn from the circumstances that the Law Society did not call as witnesses such persons as the car thieves or the persons who had been, but were no longer, officials in the State Attorney's Office, such as Ms Reno, Mr Gregorie and Mr Band, and did not adduce evidence to explain why it had not called these persons as witnesses. 460 It is clear that the Law Society had no means of compelling any of these persons to give evidence. 461 An example of the difficulty in obtaining evidence from an American witness was provided by the case of Mr Richey, who gave evidence for the plaintiff. Mr Richey made an affidavit for the plaintiff and was required to attend for cross-examination on his affidavit. I granted an application by counsel for the plaintiff, over the opposition of counsel for the defendant, that the cross-examination of Mr Richey take place by video link, even though some of Mr Richey's evidence was quite contentious, because I was informed by counsel for the plaintiff that Mr Richey would not come to Australia and, unless the cross-examination could take place by video link, there could be no cross-examination of Mr Richey. 462 I do not consider that the principle in Jones v Dunkel should be applied in the present case. As I have already held, the present proceedings being disciplinary proceedings or akin to disciplinary proceedings, they cannot necessarily be determined in accordance with the rules and procedure applying in ordinary adversary proceedings. Furthermore, in my opinion, none of the preconditions for the application of the principle are satisfied. As stated in Cross on Evidence par 1215:- "The rule cannot be applied to the non-calling of a witness unless it would be natural for the party to call the witness or the party might reasonably be expected to call the witness or… a missing witness would be expected to be called by one party rather than the other". 463 If the principle in Jones v Dunkel was applied, it would be necessary to keep in mind the limited nature of the inference which a tribunal of fact may, if it sees fit, draw. As Street CJ explained in R v Buckland (1977) 2 NSWLR 452 at 458:- "The inference which a court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness. The significance of this inference differs according to the closeness of the relationship of the absent witness with the party against whom the inference is sought to be propounded. . . . At its highest, however, the inference does not ordinarily extend beyond a negation of favourable evidence from the absent witness. Failure to call a witness will not support a positive inference that the witness would have in fact given evidence damaging to the case of the party who omitted to call him. Failure to call a witness will assist materially in determining what findings or inferences might fairly be made or drawn from the evidence of the opposing party, but it will not ordinarily provide a legitimate basis for supplying what is a clear deficiency in the case of the opposing party". 464 If I did consider that the principle in Jones v Dunkel was applicable in the present case, I would decline to draw the inference permitted by the principle, on the grounds that the Law Society is not in the position of a party to ordinary adversary litigation, the absent witnesses are in the United States and there is no close connection or indeed any real connection at all between the Law Society and any of the absent witnesses. 465 In the absence of evidence from many persons who could obviously have given relevant evidence, this Court should exercise caution and restraint in making findings on matters to which their evidence would have been relevant. 7. Considerations of Natural Justice or Procedural Fairness. 466 This Court is being asked by the plaintiff to make findings against a number of persons, including, but without being limited to, Ms Reno, Mr Gregorie, Mr Band and Mr Havens, that in the course of carrying out their official functions they engaged in discreditable, and indeed grossly discreditable, conduct, without these persons being parties to the proceedings, without these persons having given evidence in the proceedings and without evidence that any of these persons had notice of these proceedings or notice of the allegations of discreditable conduct made against them. 467 As counsel for the defendant submitted in his written submissions (at p43):- "The plaintiff asks this Court to find that: The State Attorney's Office directed their efforts to developing a case against him, no matter how unsoundly based, and chose to ignore, minimise or conceal clear evidence of wrongdoing by other parties; The State Attorney's Office engaged in a colourable investigation; The Chinese wall was a mere pretence; The State Attorney's Office intended to attempt to have Mr Gersten caught in a perjury trap; and The investigation was directed to the destruction of Mr Gersten as a political force in Florida". 468 The allegations of discreditable conduct made against the persons who I have named were not limited to the allegations included in the summary which I have just quoted. 469 Procedural fairness generally requires that a person who is at risk of having an adverse finding made against him or her which would deprive him or her of some right or interest, including an interest in reputation, should be given notice of the risk of such a finding being made and a tribunal should, at the least, exercise restraint in making such a finding against a person who has not been given notice of the risk of such a finding. See Mahon v Air New Zealand (1984) 1 AC 808 and Kioa v West (1985) 159 CLR 550 at 582 per Mason J. 470 It was suggested in argument that it could be inferred that persons such as Ms Reno, Mr Gregorie, Mr Band and Mr Havens had received notice of the allegations being made against them, because the State Attorney's Office had clearly received notice, as was shown by the participation in the proceedings of Mr Rosenblatt. However, Mr Rosenblatt is still an Assistant State Attorney in the State Attorney's Office, whereas Ms Reno, Mr Gregorie and Mr Band are not still in the State Attorney's Office. It is unclear on the evidence whether Mr Havens is still in the State Attorney's Office. Furthermore, even if it could be inferred that these persons had notice in a general sense of these proceedings, it could not be inferred that they had notice of the particular allegations, or all of the particular allegations, being made against them. 471 It was submitted by counsel for the plaintiff that it should be inferred that the Law Society had made a conscious decision not to seek out these people and inform them of the allegations being made against them and the plaintiff should not be penalised because the Law Society had made this conscious decision. However, for reasons similar to my reasons for rejecting the submission that the principle in Jones v Dunkel should be applied against the Law Society, I do not consider that the Law Society was obliged to seek out these persons in the United States of America and inform them of the allegations being made against them in these proceedings. 472 It was submitted by counsel for the plaintiff that any of these persons against whom I made findings of discreditable conduct could be sufficiently protected, by my making my findings subject to an explicit qualification that the findings had been made, only on the basis of the limited evidence before me, and that the person against whom the findings had been made had not had the opportunity of replying and giving evidence before me. I do not consider that such an expedient would sufficiently protect such a person. I consider that it would be a poor solace for a person against whom a finding of discreditable (and grossly discreditable) conduct was made, that the judge qualified his finding by saying that it had been made only on the limited evidence before him and without the person having had an opportunity to reply to the allegation of discreditable conduct. 8. Documentary Evidence 473 In the absence of evidence from many persons who could clearly have given relevant evidence, the plaintiff relied heavily on documents and inferences drawn from documents. 474 It was submitted by counsel for the plaintiff that in most cases the documents spoke for themselves; that counsel for the plaintiff, in his written submissions and generally, had conducted an analysis of a number of the documents; that the Law Society had received a complete set of copies of the documents in the State Attorney's Office files (apart from the contents of the Osborn file) and could have conducted its own analysis of the documents or some of them; and that it could be inferred, from the failure of the Law Society to tender documents out of the State Attorney's Office files, that the Law Society had made an analysis and there were no documents in the State Attorney's Office files, not already tendered by the plaintiff, which would have assisted the Law Society in opposing the plaintiff's claims or that, if it should be inferred that the Law Society had failed to make any analysis of the documents it had received, the Law Society should not benefit forensically from its failure. 475 I do not consider that I should draw either of the inferences which counsel for the plaintiff submitted I should draw. As I have already stated earlier in this judgment, a vast number of documents totalling several thousand pages were admitted into evidence in Mr Gersten's case, many of them through Ms Calzon. However, Ms Calzon said in her evidence that the documents which had been tendered through her represented only a small percentage of the total documents in the State Attorney's Office files. She said that she had spent hundreds of hours working on the documents. Dr McNaughtan gave evidence that on his second visit to the United States last year, which lasted approximately three months, he had worked on Mr Gersten's case, particularly, although far from exclusively, on the documents in the State Attorney's Office files. 476 If the documents out of the State Attorney's Office files tendered through Ms Calzon represent only a small percentage of the total documents in the State Attorney's Office files, then I do not consider that the Law Society was obliged to trawl through what must have been tens of thousands of pages of documents in the State Attorney's Office files, at the risk, if it did not do so, of its being held by a court that there were no other documents in the files which would have assisted the Law Society in opposing Mr Gersten's claims. 477 I consider that it is appropriate for me to take into account that I have seen only a small percentage of the documents in the State Attorney's Office files. 478 As far as the submission that the documents speak for themselves is concerned, the documents tendered through Ms Calzon were admitted on a limited basis. Counsel for the defendant objected to these documents being admitted as any evidence of the truth of the matters alleged in them. Counsel for the plaintiff then gave an assurance that "in the majority of these cases we are not suggesting that what is contained in these documents should be taken as evidence of the truth…. only as evidence of the information which was in the possession of, and available to, the State Attorney's Office at the relevant time". I stated that the documents in the State Attorney's Office files being tendered through Ms Calzon were relied on, simply as showing what information was available in the State Attorney's Office at a particular time. 479 Counsel for the defendant objected generally to all of the many documents tendered by counsel for the plaintiff through Dr McNaughtan. Rather than taking time adjudicating on the admissibility of all of the many documents, I admitted the documents, subject to counsel for the defendant's objections. I hold that the documents tendered through Dr McNaughtan are not evidence of the truth of the assertions made in the documents. 480 As for the submission that "the documents speak for themselves", there were during the hearing some object lessons in the danger of drawing inferences from documents, unassisted by oral evidence. I have already referred to the example of the disposition form. 481 Another example was the notation "3 Aug. '92 spoke/w/Dick-NO-MB" written by Mr Band on the cover sheet of the fax of the letter of 31 July 1992 from Mr Sharpstein to Mr Band. The inference was drawn by counsel for the plaintiff (I accept quite honestly and with some apparent justification) that the notation evidenced a communication between Mr Band and "Dick" Gregorie. This inference led to an apparently powerful submission by counsel for the plaintiff that the notation was "direct evidence that the Chinese wall was an artifice". 482 Late in the proceedings counsel for the defendant submitted that I should find that the "Dick" referred to in the notation was not Mr Richard Gregorie but Mr Richard Sharpstein, Mr Gersten's lawyer. This latter interpretation having been drawn to my attention, I am satisfied that it is the correct interpretation. Mr Band had received a letter of 31 July 1992 from Mr Sharpstein, whose name was Richard. Mr Sharpstein and Mr Band were on first name terms, as is shown by Mr Sharpstein addressing his letter to "Dear Michael". In his letter Mr Sharpstein asked Mr Band to contact him on 3 August 1992, which is the date of the notation, with Mr Band's response to the suggestion made by Mr Sharpstein in his letter. 483 When the notation was properly interpreted, an apparently powerful argument for the plaintiff collapsed. However, if counsel for the defendant had not made his submission, the Court might well, in the absence of any evidence from Mr Band, have accepted the interpretation of the notation contended for by counsel for the plaintiff and the submission which was based on that interpretation. 484 In the absence of oral evidence explaining the documents, there are many puzzles in the documents. 485 One such puzzle is whether the State Attorney's Office had obtained evidence from Claudia Lira and Kenneth Elswick which was not immunised and which, accordingly, could be used against them in a prosecution of them for the theft of Mr Gersten's car. If such evidence was available, then the need for any evidence from Mr Gersten, in order for there to be a successful prosecution, would have been reduced and the argument that the State Attorney's Office had an improper purpose in persisting in its attempts to question Mr Gersten, ostensibly for the purpose of a prosecution of the car thieves, would have been strengthened. 486 As I have indicated earlier, it would seem that the statement made by Claudia Lira on 10 June 1992 was immunised and that any statement made by Kenneth Elswick on 28 May 1992 was not immunised. However, both Claudia Lira and Kenneth Elswick provided information on other occasions and it is unclear whether the information provided on these other occasions was available to be used against them. 487 Some things done and said by Mr Gregorie might suggest that all of the information provided by Claudia Lira and Kenneth Elswick was immunised. When Mr Gregorie forwarded a large number of documents to Mr Band on 29 June 1992, after the creation of the Chinese wall, he omitted any statement by Claudia Lira or Kenneth Elswick, apparently on the basis that all such statements were immunised. When Mr Gregorie gave evidence before Judge Dean on 14 January 1993, Mr Gregorie said explicitly that he had given the prospective defendants in a car theft prosecution immunity for the statements taken from them. This evidence by Mr Gregorie may have been untrue and may have been deliberately untrue. However, I would be reluctant to find that Mr Gregorie lied in his evidence to Judge Dean or even that his evidence was untrue, in the absence of any evidence from Mr Gregorie, particularly when his evidence before Judge Dean seems to be in accord with his actual conduct on 29 June 1992. 488 Clearly, a court in Florida, having greater familiarity with institutions, practices and procedures in Florida and having the ability to compel the attendance of witnesses who could explain documents, would be in a better position than this Court to evaluate documents, including documents out of the State Attorney's Office files. Alleged Misconduct in New South Wales 489 Counsel for the defendant sought to rely on the plaintiff's alleged misconduct in New South Wales in relation to the exempt documents, in not immediately returning the documents to the Federal Court Registry, after he had discovered what the documents were, and in endeavouring to make use of the documents, as being a factor to which the Court should have regard in deciding whether to otherwise order under Pt 65A r 3. Counsel for the plaintiff submitted that any alleged misconduct by the plaintiff in New South Wales in relation to the exempt documents should not be taken into account by me. 490 Much evidence about the exempt documents was admitted at the hearing. During the hearing I was uncertain whether the plaintiff's alleged misconduct in relation to the exempt documents was a matter which I should take into account and I considered that it would be preferable to admit the evidence, subject to relevance, rather than reject evidence which I might ultimately decide would have been relevant. Furthermore, during most of the hearing, counsel for the defendant took the position that I should, quite independently or Pt 65A r 3, exercise the inherent jurisdiction of this Court, preserved by s 171M of the Legal Profession Act 1987, and determine whether Mr Gersten's conduct in relation to the exempt documents amounted to professional misconduct. However, in his final submissions counsel for the defendant submitted that I should not exercise the inherent jurisdiction of this Court, on the grounds that the inherent jurisdiction of this Court should be exercised only by the Court of Appeal and not by a single judge. Counsel for the defendant continued to submit, not very strenuously it appeared to me, that, notwithstanding that I should not exercise the inherent jurisdiction of the Court to decide whether Mr Gersten had been guilty of professional misconduct, I should nevertheless take into account his conduct in relation to the exempt documents as a relevant factor in deciding whether to exercise the power to otherwise order under Pt 65A r 3. 491 As both parties submitted that I should not exercise the Court's inherent jurisdiction to decide whether Mr Gersten's conduct in relation to the exempt documents amounted to professional misconduct, I should not do so. In any event, I would not have considered it appropriate that I should exercise the Court's inherent jurisdiction. The only claim for relief formally made in these proceedings was Mr Gersten's claim for relief under Pt 65A r 3 of the Supreme Court Rules. Part 10 of the Legal Profession Act, which is headed "Complaints and Discipline", lays down a complex regime for the making of complaints about legal practitioners, the investigation of complaints by the Law Society Council or the Legal Services Commissioner, applications to the Administrative Decisions Tribunal and appeals to the Appeal Panel of the Tribunal. There are a number of provisions in Pt 10 which are intended to protect legal practitioners against whom complaints have been made. A judge of this Court should not lightly take it upon himself or herself to decide whether a legal practitioner has been guilty of professional misconduct, thereby circumventing the procedures laid down in the Legal Profession Act, including that the complaint, after having been investigated, should be adjudicated on by a tribunal constituted in accordance with the Administrative Decisions Tribunal Act. 492 If I refrain from deciding whether Mr Gersten's conduct in relation to the exempt documents amounted to professional misconduct under the Legal Profession Act, I should not make any finding about that conduct for the purpose of taking such a finding into account as a factor in determining whether I should otherwise order under Pt 65A r 3. The making of any such finding might prejudice proceedings under the Legal Profession Act in relation to the same conduct. I was informed at the hearing that a complaint about the plaintiff's conduct in relation to the exempt documents had in fact been made and that the Legal Services Commissioner was investigating the complaint. Decisions of Courts in Florida 493 Earlier in this judgment I noted a submission made by counsel for the plaintiff that the capacity of the courts in Florida to render justice to the plaintiff had been impaired by the reluctance of the courts in Florida to intervene in a criminal investigation purportedly being carried on by the State Attorney's Office and by the unavailability to the courts in Florida of the documents in the files of the State Attorney's Office which have now been made public. 494 I accept that the courts in Florida exhibited some reluctance to intervene in a criminal investigation purportedly being carried on by the State Attorney's Office. I note, however, that Judge Dean intervened in the investigation being carried on by the State Attorney's Office, to the extent of saying that she would rule on whether questions proposed to be put by Mr Band to Mr Gersten were proper questions and then making rulings on the propriety of a number of questions which were referred to her. 495 It is true that the courts in Florida which made decisions involving Mr Gersten did not have available to them the documents which have now been disclosed by the State Attorney's Office. As I have already said, the courts in Florida would be in a far better position to interpret and assess those documents than this Court is. 496 In his final submissions counsel for the plaintiff made some criticisms of what judges in Florida had done. For example, it was submitted that Judge Dean in her judgment of 14 January 1993 had misunderstood the nature of the perjury trap Mr Gersten was alleging; that on 17 March 1993 her Honour should not have abridged the time for the hearing of the rule to show cause why Mr Gersten should not be held in contempt of court from the usual ten days to one day, thereby making it more difficult for Mr Gersten to collect evidence; and that on 29 March 1993 her Honour should not have extended the time for a status report, from the period of thirty days from 18 March 1993 which she had originally ordered, to 21 May 1993. 497 I will deal with Judge Dean's alleged misunderstanding of the nature of the perjury trap Mr Gersten was alleging, later in this judgment. It was not suggested by counsel for the plaintiff that any of the other criticisms he made of what Judge Dean ha done were of any substantial weight. 498 A number of criticisms were made by counsel for the plaintiff of Judge Sigler's order or judgment of 24 October 2000. It was submitted that the assertion in par 6 of the order that Mr Gersten had "fled" the jurisdiction of the court was wrong in fact; that Judge Sigler should not have refrained from ruling on the submission made by Ms Calzon that the limitation period for a prosecution of the car thieves had run, especially having regard to an express concession made before her Honour by Mr Rosenblatt on behalf of the State Attorney's Office; that the analogy in par 8 of her Honour's order was inappropriate and emotionally charged; and that her Honour had erred in finding that Mr Gersten was a "fugitive from justice", because under Florida law only a criminal defendant can be a "fugitive from justice" and Mr Gersten was not a criminal defendant. 499 I will return to the question of whether Mr Gersten "fled" the jurisdiction or could be described as a "fugitive from justice," later in this judgment. It was unnecessary for Judge Sigler to decide whether the limitation period had run for a prosecution of the car thieves and I do not consider that her Honour should be criticised for having abstained from making a ruling on a point she did not have to decide. The analogy in par 8 reflects a certain kind of judicial style and I would not seek to pass judgment on whether the analogy should have been used. 500 I have referred to some incidental criticisms made by counsel for the plaintiff of what judges in Florida had done. However, apart from these incidental criticisms, the final position adopted by counsel for the plaintiff in his written submissions was:- "It will not be submitted that any of the courts in Florida acted corruptly or improperly, although it is clearly Gersten's personal belief that at least some of those courts were influenced by non-legal considerations relating to the "political" nature of his case and the political imperatives which act upon the elected judiciary in Florida". 501 As no submission is made that courts in Florida acted corruptly or improperly, I will not seek to inquire whether any court in Florida acted corruptly or improperly. 502 Counsel for the defendant sought to rely on, as being relevant factors under Pt 65A r 3, Mr Gersten's assertion in his oral evidence before me that he had not been sincere in the praise he had given Judge Dean in his statement before her on 18 March 1993 and Mr Gersten's evidence before me about his real opinion of Judge Dean's calibre as a judge. It was submitted by counsel for the defendant that Mr Gersten's assertion showed that he had lied to Judge Dean in his sworn statement before her on 18 March 1993 and that Mr Gersten had in his evidence before me engaged in disparaging, unsupported allegations against a judicial officer. 503 I do not consider that I should give either of these matters any significant weight. I accept that, when Mr Gersten made his statement to Judge Dean on 18 March 1993, he was speaking impromptu, he was in a highly emotional state and he was speaking as a suppliant to Judge Dean. I find it unremarkable that he might have engaged in flattery, even insincere flattery, of a judge who had his fate in her hands. Mr Gersten ought not to have referred to Judge Dean disparagingly before me but it is not a matter to which I would attach any significant weight. Outstanding Issues 504 Earlier in this judgment I attempted to summarise the principal submissions made by counsel for the plaintiff in his written submissions. 505 I have already dealt with part of submission 3 (relating to the courts in Florida), submissions 5 and 6 (the interpretation of Pt 65A r 3) and submission 10 (Mr Gersten's conduct in New South Wales). I accept submission 1 that Mr Gersten is a person generally of good character and submission 2, to the extent that I find that Mr Gersten disobeyed the court order in Florida in extraordinary circumstances, which would be unlikely to be repeated in New South Wales. There appear to me to be five principal issues remaining which I should address:- 506 (a) Did Mr Gersten not commit the alleged Gersten offences (submission 7)? 507 (b) Did the State Attorney's Office carry on an investigation in bad faith for the purpose of harming Mr Gersten (submission 8)? 508 (c) Did Mr Gersten honestly believe on reasonable grounds that the State Attorney's Office was carrying on an investigation in bad faith for the purpose of harming him (submission 9)? 509 (d) Did the Florida Bar adopt an improperly narrow view of what factors were relevant in determining what would be an appropriate sanction for any misconduct by Mr Gersten (submission 4)? 510 (e) If Mr Gersten returned to Florida, what would be likely to happen and would Mr Gersten be able to obtain justice in the courts of Florida (part of submission 3 and more generally)? Did Mr Gersten Not Commit the Alleged Gersten Offences? 511 A very large part of counsel for the plaintiff's written submissions (pp23-74) was devoted to the subject of "did Gersten go to the crack house?". The principal submissions made in support of the contention that I should find that Mr Gersten did not go to the crack house, that is, that Mr Gersten did not commit the alleged Gersten offences, were:- 512 (i) There were inconsistencies in the versions given by the car thieves, both in the versions given from time to time by each of them and between versions given by any one of them and versions given by others of them. These alleged inconsistencies were examined in considerable detail in counsel for the plaintiff's written submissions. 513 (ii) The car thieves were all persons of poor credibility, with substantial criminal histories. 514 (iii) Whatever credibility Kenneth Elswick might otherwise have had was destroyed by his conduct, which had been tape-recorded, in seeking to extort $10,000 from Mr Gersten, in exchange for changing his evidence favourably to Mr Gersten. 515 (iv) Whatever credibility Claudia Lira might otherwise have had was destroyed by her conduct, according to what Wayne Pierce told the police, in suborning Wayne Pierce to give false information to the police that he had seen a man matching Mr Gersten's description and driving a vehicle similar to Mr Gersten's shoot Gregory Wellons. 516 (v) The forensic evidence to the effect that the analysis of the samples of hair taken from Mr Gersten was "negative for cocaine" cleared Mr Gersten and there was no forensic evidence incriminating Mr Gersten. 517 (vi) Times which were "verifiable" and could be accepted with confidence, including the time at which Mr Gersten had left the clothing store (6.30 pm), which was fixed by the store's burglar alarm records, the time at which Rosario Kennedy, shortly before returning to Mr Gersten's home on the evening of 29 April 1992, had paid a bill by cheque at a supermarket (9.48 pm) and the time estimated by Mr Richey as being the time at which he received a telephone call from Mr Gersten (about 8.50 pm) did not leave a sufficient interval of time within which the sort of episode of criminality described by the car thieves could have occurred. 518 (vii) Records of the telephone in Mr Gersten's car showed that the telephone had been used to make outgoing calls at 7.13, 7.40, 8.06 and 8.07 on the evening of 29 April 1992. It was submitted that none of these calls could have been made by Mr Gersten and all of them must have been made while Mr Gersten's car was in the possession of the car thieves. 519 It was submitted by counsel for the plaintiff that it was relevant to determine whether Mr Gersten was guilty or innocent of having committed the alleged Gersten offences, because, if Mr Gersten was innocent and had been conscious of his innocence, that would help to explain some of his conduct in relation to the State Attorney's Office and the courts in Florida, including his perception that the State Attorney's Office was using the courts in Florida to destroy him. It was also submitted that the weakness of the prosecution case against Mr Gersten that he had committed the alleged Gersten offences should have been apparent to the State Attorney's Office and the conduct of the State Attorney's Office in persisting with an investigation into the alleged Gersten offences, notwithstanding that the weakness of the case against Mr Gersten should have been apparent, showed the bad faith of the State Attorney's Office. 520 Mr Gersten was never charged with the alleged Gersten offences and hence there has never been any determination in Florida of whether he committed the alleged Gersten offences. Notwithstanding that Judge Sigler abstained on 24 October 2000 from ruling whether the limitation period for any prosecution for the theft of Mr Gersten's car had run, I consider that I can infer from Mr Rosenblatt's evidence, from Ms Rundle's announcement that the statute of limitations had run for all the alleged offences involving Mr Gersten and from Ms Rundle's act of opening the State Attorney's Office files relating to Mr Gersten, that Mr Gersten could not now be charged with any of the alleged Gersten offences. Accordingly, I would not, by answering the question "did Mr Gersten commit the alleged Gersten offences"? prejudice any future criminal trial in Florida of the alleged Gersten offences. 521 The submissions made by counsel for the plaintiff which I have outlined have substantial force. Nevertheless, I have concluded that I should not attempt to determine whether Mr Gersten did not commit the alleged Gersten offences. Alternatively, I have concluded, having made such an attempt, that I should hold that I am not satisfied that Mr Gersten has succeeded in establishing that he was not guilty of the alleged Gersten offences. There are a number of reasons which support both of my conclusions. 522 (i) I accept that whether Mr Gersten committed the alleged Gersten offences is not irrelevant to whether I should otherwise order under Pt 65A r 3. However, I consider that it is only marginally relevant. The misconduct on account of which Mr Gersten was suspended from practice in Florida was not the commission of the alleged Gersten offences but Mr Gersten's refusal to comply with Judge Dean's order. The Referee in deciding what sanction he would recommend found as a mitigating factor "character or reputation", to which he gave great weight. The only aggravating factor the Referee found was Mr Gersten's refusal to acknowledge the wrongful nature of his conduct in refusing to comply with Judge Dean's order. The Referee, accordingly, recommended a sanction on the basis that Mr Gersten was not to be regarded as guilty of the alleged Gersten offences. The Supreme Court of Florida adopted the sanction recommended by the Referee and impliedly adopted the Referee's reasoning. 523 Even if there were apparent weaknesses in the case against Mr Gersten that he committed the alleged Gersten offences, it does not necessarily follow that the investigation of the car thieves for the theft of Mr Gersten's car, which was the investigation in which Mr Gersten was required to give evidence, was an investigation in bad faith. 524 I approach the question of whether I should otherwise order under Pt 65A r 3 on the basis that Mr Gersten, apart from his conduct in relation to Judge Dean's order, is a person of good character, who is not to be regarded as guilty of the alleged Gersten offences. 525 (ii) What the Court is being asked to do in these proceedings is quite anomalous. I am not being asked to decide whether I am satisfied beyond reasonable doubt that Mr Gersten committed the alleged Gersten offences. I am being asked to decide affirmatively, presumably on the balance of probabilities, that Mr Gersten did not commit the alleged Gersten offences. 526 (iii) The present proceedings in the Supreme Court of New South Wales before a judge sitting without a jury are highly inappropriate for the determination of the question whether, almost a decade ago, Mr Gersten did not commit certain crimes in the American State of Florida. As a general rule, jurisdiction over crime is territorial, that is to say whether a person has committed a crime is determined by a court of the territory within which the crime was allegedly committed. See Attorney-General v Heinemann at 44. 527 (iv) Mr Gersten's only opponent in these proceedings is the Law Society of New South Wales. The State Attorney of the Eleventh Judicial Circuit in Florida is not a party to the proceedings. The Law Society adopted the position that whether Mr Gersten had committed the alleged Gersten offences was irrelevant to my task and, in general, counsel for the Law Society did not seek to participate in this part of the case. For example, counsel for the Law Society did not cross-examine Mr Gersten as to whether he had committed the alleged Gersten offences. 528 Occasionally at the hearing counsel for the Law Society did seek to contribute something on the issue of whether Mr Gersten had committed the alleged Gersten offences. For example, he pointed out that Detective Osborn's report of 5 May 1992, rather than proving that Lisa McCann had suborned Wayne Pierce to give false evidence, might merely show that on two different occasions Wayne Pierce, an apparently unreliable witness, provided conflicting information to Detective Osborn. 529 An opponent with an interest in opposing Mr Gersten on the issue of whether he committed the alleged Gersten offences may have exposed weaknesses in the case counsel for the plaintiff was seeking to mount. 530 (v) I accept that there are substantial arguments against the credibility of the car thieves. However, the position remains that I have not seen or heard any of them give evidence. It would be very difficult to find affirmatively that Mr Gersten did not commit the crimes, without hearing the witnesses whose evidence might prove that he did. 531 (vi) Insofar as counsel for the plaintiff sought to establish by documentary evidence that Mr Gersten did not commit the alleged Gersten offences, it is necessary to keep in mind the limited basis on which many of the documents were admitted, that is not as being evidence of the truth of the assertions of fact contained in them. 532 (vii) The attempted demonstration of Mr Gersten's innocence from the circumstances of the verifiable times and the times of the telephone calls is the sort of demonstration which, when the prosecution seeks to prove guilt by circumstantial evidence, not infrequently founders when confronted with oral evidence. 533 Having regard to the reasons I have just given and to the considerations requiring caution and restraint which I listed earlier, I hold that I should decline to attempt to determine whether Mr Gersten did not commit the alleged Gersten offences. Alternatively, having made that attempt, I hold that I am not satisfied that Mr Gersten has established that he did not commit the alleged Gersten offences. These holdings are, of course, not the same as holding that Mr Gersten did commit the alleged Gersten offences. I will proceed in this judgment on the basis that Mr Gersten is not to be regarded as guilty of the alleged Gersten offences. Did the State Attorney's Office carry on an Investigation in Bad Faith for the Purpose of Harming Mr Gersten? 534 A large part of counsel for the plaintiff's submissions (pp74-113) was devoted to the subject of "Eidence suggesting a bad faith investigation". The sub-headings in this part of counsel for the plaintiff's written submissions were "Involvement by Officer Garcia", "Obtaining of witnesses against Gersten", "Investigation of a closed case", "The Chinese wall", "The perjury trap" and "Investigation of financial matters". 535 Other evidence which counsel for the plaintiff submitted suggested a bad faith investigation by the State Attorney's Office included that the offence alleged against the car thieves was a comparatively minor offence, that Mr Gersten was the victim of the offence, that Mr Gersten as the victim did not want the car thieves to be prosecuted and Mr Gersten was willing to supply the only evidence which was required from him in order for there to be a successful prosecution, that is that he was the owner of the car and had not given the persons who took the car permission to take it. 536 Counsel for the plaintiff also relied on what were submitted to be the weaknesses of the prosecution case against Mr Gersten for the alleged Gersten offences. 537 As stated earlier in this judgment, it was submitted by counsel for the defendant that whether the State Attorney's Office had engaged in an investigation in bad faith for the purpose of harming Mr Gersten was irrelevant. In support of this submission counsel for the defendant referred to parts of the judgment of the Supreme Court of Florida, including the Court's approval of the Referee's conclusion "that once there were no further appeals seeking to overturn the validity of the court order, Gersten was under an absolute obligation to comply with Judge Dean's order". The Supreme Court of Florida concluded that it could not accept Mr Gersten's contention "that he was denied his right to conduct discovery in order to develop proof that he was not obligated to testify because the State Attorney's Office was acting illegally, was conducting an investigation in bad faith to harm his political future and was acting to deny Gersten his constitutional rights". The Supreme Court of Florida concluded that the Referee had properly precluded Mr Gersten from pursuing discovery for the purposes of "going behind" the order of contempt. 538 Counsel for the defendant also referred to the pronouncement by the Supreme Court of the United States in Juidice v Vail, cited by Judge King in his judgment of 14 September 1993, that judicial orders must be followed by individuals "however improvidently (those orders were) made, even if it may seem certain that the court acted in granting them under misapprehension or mistake". 539 Counsel for the defendant also pointed to Australian authority, that while an order of a superior court exists it must be obeyed. Rubie v Rubie (1911) 13 CLR 350 at 353-4 per Griffith CJ; Attorney-General for New South Wales v Mayas Pty Limited (1988) 14 NSWLR 342 at 357 per McHugh JA; United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 335 per Samuels AP; Pelechowski v Registrar Court of Appeal (NSW) (1999) 198 CLR 435 at 445 per Gaudron, Gummow and Callinan JJ.. 540 I accept counsel for the defendant's submissions to this extent, that I agree that Mr Gersten, once his appeals were exhausted, was under an absolute obligation to comply with Judge Dean's order, regardless of whether the State Attorney's Office had conducted an investigation in bad faith against him, and his refusal to comply with that obligation was a breach of r 4-3.4(c) of the Florida Rules of Professional Responsibility, rendering him liable to the imposition of some sanction. However, I consider that whether the State Attorney's Office conducted an investigation in bad faith to harm Mr Gersten could be relevant to whether I should otherwise order under Pt 65A r 3. The parts of the judgment of the Supreme Court of Florida to which I was referred by counsel for the defendant were in the part of the court's judgment leading to the court's conclusion that there was "competent and substantial evidence to support the recommendation of guilt (by the Referee)". It was only after stating this conclusion that the court addressed the issue of the appropriate "discipline" for Mr Gersten. 541 In Rubie v Rubie, one of the cases to which I was referred by counsel for the defendant, Griffiths CJ said (at 353-4) that no one could cavil with a statement of the law by Lord Truro L.C. in Russell v East Anglian Railway Co (3 Mac.& G.,104 at 124):- "All that I can understand is, that the court in administering punishment would attend to all the circumstances of the case, and amongst others, to the circumstances under which the order has been made, but that is not at all intended to impugn the general principle that is laid down, that an order once made by this court must be obeyed. I can only understand the words 'must be obeyed' as meaning that, if the order is not obeyed, the party shall be liable to punishment". 542 I have decided that whether the State Attorney's Office conducted an investigation in bad faith to harm Mr Gersten could be relevant to whether I should otherwise order under Pt 65A r 3. I still have to determine whether I should attempt to decide whether the State Attorney's Office conducted an investigation in bad faith to harm Mr Gersten and, if so, whether Mr Gersten has discharged the onus of proving that the State Attorney's Office conducted an investigation in bad faith to harm him, and if so, what weight should be given to this factor in deciding whether I should otherwise order. 543 The considerations which earlier in this judgement I held would require me to exercise caution and restraint and would militate against my making findings which counsel for the plaintiff urged me to make apply with particular force to the making of a finding that the State Attorney's Office conducted an investigation in bad faith to harm Mr Gersten. These matters include the grave nature of the allegation and therefore the standard of proof under s 140(2) of the Evidence Act, considerations of international comity, my lack of familiarity with institutions, practices and procedures in Florida, the nature of these proceedings and the parties to these proceedings including that the State Attorney is not a party to the proceedings, the absence of any evidence from such persons as Ms Reno, Mr Gregorie, Mr Band, Mr Havens and Mr Garcia, the need to accord procedural fairness to a body and to persons against whom I am asked to make findings of improper conduct and the limited basis on which documents were admitted into evidence and the danger of drawing inferences from documents, unassisted by oral evidence, and the existence of many documents in the State Attorney's Office files which were not tendered. 544 Earlier in this part of my judgment I set out the sub-headings between pages 74 and 113 of counsel for the plaintiff's written submissions. I will comment on some of the sub-headings. 545 1. Involvement by Officer Garcia. 546 It was submitted by counsel for the plaintiff inter alia that:- 547 (i) Garcia had claimed that on the afternoon of 30 April 1992 he had identified a car he had observed as being Mr Gersten's by making a computer check on the tag number (registration number) of the car; however, this could not have happened as alleged by Garcia, because, after Mr Gersten's car had been stolen and while the car was in the possession of the car thieves, the registration plate of the car had been changed. 548 (ii) At 3.59 on the afternoon of 30 April 1992, after the car had been recovered, Garcia made a telephone call to the same Florida number as had been called using the same telephone at 7.40 and 8.06 on the previous evening, when, it was contended, the car had been in the possession of the car thieves. It was submitted that this circumstance showed that Garcia was himself involved in the car theft or knew what had been happening to the car, long before he apprehended the car thieves. 549 (iii) The dates on certain records relating to disciplinary proceedings against Garcia had been changed from 1 May 1992 to 17 May 1992. It was submitted that this had been done, so as to conceal that Garcia had been working on the Gersten case on behalf of the State Attorney's Office as early as 30 April or 1 May. 550 Many of the inferences I am asked to draw about Garcia appear to me to be rather speculative. There is also the serious problem that I have not heard any evidence from Garcia and do not know what explanations he would be able to give. In the case of Garcia, even more than in the case of some of the other persons associated with the State Attorney's Office, it cannot be inferred that he would have received notice of the allegations being made against him. A number of the allegations ultimately made against Garcia were not included in the plaintiff's statement of contentions of fact and law (there were no pleadings in the proceedings) and only emerged in the course of the hearing. 2. Obtaining witnesses against Mr Gersten 551 With respect to obtaining witnesses against Mr Gersten, it was submitted that the State Attorney's Office had gone to extraordinary lengths in its attempts to obtain statements from witnesses who might say something discreditable about Mr Gersten, while not pursuing the taking of statements from two witnesses Mr and Mrs Ichovitz, who might have been able to give evidence tending to exculpate Mr Gersten. 3. Investigation of a Closed Case 552 The submission that the State Attorney's Office had investigated a closed case was largely based on the disposition form (Calzon exhibit 108) to which I have already referred in discussing this Court's lack of familiarity with practices and procedures in Florida. The submission is seriously weakened by Mr Rosenblatt's evidence in his supplementary affidavit. 4. The Chinese wall 553 It was submitted by counsel for the plaintiff that the Chinese wall was "a work of fiction", "a farce", "a charade", set up to circumvent Mr Gersten's constitutional right not to incriminate himself and to enable the questions which Mr Gregorie wanted answered for the purpose of his investigation but which he could not ask himself, to be asked of Mr Gersten by Mr Band. 554 It is difficult to determine what was really meant by "the Chinese wall". 555 Counsel for the plaintiff submitted that the function of the Chinese wall should have been to insulate the two investigations from each other and that evidence that Mr Gregorie and Mr Band had communicated with each other, for example by Mr Gregorie forwarding documents to Mr Band on 29 June 1992 was evidence that the Chinese wall had been breached. This conception of how the Chinese wall should have functioned was supported by an assertion in Mr Richey's affidavit of 29 November 2000 that the two investigations were supposed to be conducted independently, without any discussing or sharing of information between the two investigators. 556 However, there was much evidence before me suggesting that the Chinese wall was not intended to insulate the two investigations from each other so as to prevent the sharing of information between the two investigators but was intended merely to ensure that immunised testimony obtained by one investigator should not be provided to the other investigator, if the immunised witness was a potential defendant in the investigation being conducted by the other investigator. 557 In his evidence in cross-examination before Judge Dean on 14 January 1993 Mr Richey agreed that the purpose of the Chinese wall was to ensure that someone on one side of the wall should not hear some immunised testimony given on the other side of the wall. 558 Mr Gregorie in his evidence before Judge Dean on 14 January 1993 was insistent that the purpose of the Chinese wall was to ensure that an investigator on one side of the wall was not "tainted" by immunised testimony given on the other side of the wall. In his evidence before Judge Dean Mr Gregorie made no attempt to conceal that, after removing any immunised testimony, he had provided all of the evidence he had to Mr Band. 559 It seems to me likely that the Chinese wall was intended to have only this limited function, of keeping on one side of the wall immunised testimony which, if shared, would "taint" the investigator on the other side of the wall. On this conception of the Chinese wall, the forwarding of documents by Mr Gregorie to Mr Band on 29 June 1992 did not necessarily involve any breach of the Chinese wall. 560 As previously stated in this judgment, I consider that the notation in Mr Band's handwriting on the cover sheet of the fax of 3 August 1992, which was relied on by counsel for the plaintiff as powerful evidence that the Chinese wall had been breached, ceased to have any significance, when it was established that the "Dick" referred to in the notation was Mr Sharpstein, and not Mr Gregorie. 561 There was much evidence given about the Chinese wall in the hearing before Judge Dean on 14 January 1993. Her Honour had the advantage, denied to me, of seeing and hearing Mr Havens and Mr Gregorie (as well as Mr Richey) give evidence. Her Honour made a finding that the Chinese wall had been respected and preserved. An appeal from her Honour's decision was dismissed. I should exercise considerable restraint in making a finding to the contrary of Judge Dean's finding, even if there is more documentary evidence before me than there was before Judge Dean. 562 I am not satisfied that it has been established that the Chinese wall was "a work of fiction", "a farce" or "a charade" or a device for circumventing Mr Gersten's rights. 5. The Perjury Trap 563 The nature of the perjury trap alleged by Mr Gersten has been set out in a number of places in this judgment. In his affidavit of 29 November 2000 Mr Richey said that the complete set of options open to Mr Gersten was:- 564 (i) Answer Mr Band's questions truthfully, in which case he would be charged with perjury. 565 (ii) Answer Mr Band's questions untruthfully, in accordance with the allegations made by the car thieves, thereby avoiding being immediately charged with perjury, but rendering himself unable to defend charges for the alleged Gersten offences, without then being charged with perjury. 566 (iii) Refusing to answer Mr Band's questions. 567 According to Mr Richey Mr Gersten was in a "lose/lose/lose position" – it was a "classic" perjury trap. 568 Much evidence about the alleged perjury trap was given before Judge Dean on 14 January 1993. In her judgment of 14 January 1993 her Honour described the alleged perjury trap as being "the thrust" of the motion before her to disqualify the Dade County State Attorney's Office. In her judgment her Honour clearly found that Mr Gersten had failed to establish that the State Attorney's Office had set a perjury trap. 569 In the proceedings before me counsel for the plaintiff submitted that Judge Dean had misunderstood the nature of the perjury trap being alleged by Mr Gersten. In her judgment Judge Dean held that a perjury trap was created, when a witness was called for the primary purpose of obtaining testimony from him in order to prosecute him later for perjury, the person calling the witness believing that the witness will give perjured evidence. However, in counsel for the plaintiff's submission, this was not the kind of perjury trap which Mr Gersten was alleging. The kind of perjury trap Mr Gersten was alleging was the "lose/lose/lose" trap described by Mr Richey. 570 I do not consider that I should find that Judge Dean was under any misunderstanding about the kind of perjury trap Mr Gersten was alleging. The nature of the perjury trap alleged by Mr Gersten was clearly spelt out in the evidence given before her by Mr Richey and in the submissions made to her by Mr Gersten's counsel. 571 My understanding of this part of Judge Dean's judgment of 14 January 1993 is that her Honour, after referring to certain authorities to determine what had been recognised by the courts as being a perjury trap, held that no perjury trap, within the definitions of a perjury trap in those authorities, had been set for Mr Gersten. 572 I note that the definition of a perjury trap given by Judge Dean in her judgment of 14 January 1993 is in accordance with the definition of a perjury trap given by Judge King in his judgment of 14 September 1993. 573 Mr Richey's assertion in his affidavit that the kind of perjury trap to which he said Mr Gersten was being subjected was a "classic" perjury trap does not appear to be supported by the authorities referred to by Judge Dean and Judge King. 574 In my opinion, I should exercise considerable restraint before finding that alleged conduct of the State Attorney's Office amounted to the setting of a perjury trap, where it would not appear to be capable of falling within the concept of a perjury trap as defined by Judge Dean and Judge King. 575 Counsel for the defendant submitted that Judge King in his judgment of 14 September 1993 had clearly stated what would have been the proper course for Mr Gersten to adopt. This course would have been for Mr Gersten to answer Mr Band's questions and to answer them truthfully. If Mr Gersten was later prosecuted for perjury, he could have defended the prosecution for perjury on the merits, that is, that his evidence had been truthful and not perjured, and, if available, he could also have raised as a defence the setting of a perjury trap. 576 In any prosecution of Mr Gersten for perjury he would have been entitled to full discovery from the prosecution, including discovery of all exculpatory documents held by the State Attorney's Office. Insofar as the prosecutor in any prosecution for perjury had to rely on evidence from one or more of the car thieves, the credibility of that witness or those witnesses could have been impeached. 577 I agree with the submission by counsel for the defendant that the course set out in Judge King's judgment would have been the proper course for Mr Gersten to adopt. 578 It was part of Mr Gersten's case that, if he had answered Mr Band's questions and had answered truthfully and had been prosecuted for perjury, then, irrespective of the merits of any prosecution for perjury, the Governor of Florida would have suspended him from his public office. However, Mr Gersten was defeated in the election for Commissioners of Dade County held on 16 March 1993 and he remained in office as a Commissioner only until 20 April 1993. If Mr Gersten had answered Mr Band's questions truthfully on 17 or 18 March and had been charged with perjury, he could have been suspended from office only for a very short period. After Mr Gersten had ceased being a Commissioner, he did not hold any public office from which the Governor could have suspended him. 579 I am not satisfied that I should find that the State Attorney's Office set a perjury trap for Mr Gersten. 6. Investigation of Financial Matters 580 The State Attorney's Office made some investigation of Mr Gersten's financial affairs. The Questions Mr Band Proposed to Ask 581 In discussing the matter of this Court's lack of familiarity with practices and procedures in Florida, I refer to the number and width of the questions proposed to be asked by Mr Band and concluded that it was difficult for me, as an Australian judge, to determine whether I should infer, from the number and width of the questions proposed to be asked by Mr Band, that the State Attorney's Office was conducting an investigation in bad faith. Judge Dean's Finding 582 The motion to disqualify the Dade County State Attorney's Office which Judge Dean heard on 14 January 1993 was based on alleged improprieties by the Dade County State Attorney's Office in the investigations it was conducting which were being handled, respectively, by Mr Band and Mr Gregorie. Her Honour heard evidence from Mr Gregorie and Mr Havens, apart from evidence from Mr Richey. In her judgment her Honour said that it was clear to her that all the State Attorney's Office was seeking was "testimony geared to a grand theft auto case". Her Honour also said "I didn't glean in any way, shape or form from the testimony given to me today that anybody is angry, obsessed or in any way out to get anybody". An appeal from Judge Dean's decision was dismissed. 583 I consider that I, not having heard any evidence from Mr Havens or Mr Gregory, should exercise caution before reaching a different conclusion from that reached by Judge Dean. 584 Having regard to the reasons I have given and to the considerations requiring caution and restraint which I listed earlier, I do not consider that I should attempt to decide whether the State Attorney's Office carried on an investigation in bad faith to harm Mr Gersten. Alternatively, having made that attempt, I find that I am not satisfied that Mr Gersten has discharged the onus of proving that the State Attorney's Office carried on an investigation in bad faith to harm him. Did Mr Gersten honestly believe on reasonable grounds that the State Attorney's Office was carrying on an investigation in bad faith for the purpose of harming him? 585 I accept that Mr Gersten believed that the Sate Attorney's Office was carrying on an investigation in bad faith to harm him. Such a finding is supported by the evidence of Mr Gersten himself and Mr Richey. Indeed, counsel for the Law Society did not dispute that Mr Gersten had such a belief (counsel for the defendant's written submissions par 43). 586 As was pointed out by counsel for the defendant, the Referee (and the Florida Supreme Court) held that, so long as appeals by Mr Gersten were pending, Mr Gersten could rely on the exception in Rule 4-3.4(c) of "an open refusal based on an assertion that no valid obligation exists". In so holding, the Referee was accepting that Mr Gersten's assertion that no valid obligation existed was an assertion made by him acting in good faith, which could not have been the case if Mr Gersten had not honestly believed that the State Attorney's Office was carrying on an investigation in bad faith to harm him. 587 I accept that there were some grounds for Mr Gersten's belief that the State Attorney's Office was carrying on an investigation in bad faith to harm him, although I have held that he has not discharged the onus of proving that the State Attorney's Office had in fact carrying on an investigation in bad faith to harm him. 588 The question remains of what significance should be given to the belief that Mr Gersten held that the State Attorney's Office was carrying on an investigation in bad faith to harm him. 589 The Florida Supreme Court clearly held that a subjective belief on the part of Mr Gersten that no valid obligation to comply with Judge Dean's order existed, because the State Attorney's Office was carrying on an investigation in bad faith to harm him, was irrelevant to whether Mr Gersten was guilty of a breach of r 4-3.4(c). 590 I have already accepted that, once Mr Gersten's appeals were exhausted, he was under an absolute obligation to comply with Judge Dean's order, regardless of whether the State Attorney's Office had in fact carried on an investigation in bad faith against him and that his refusal to comply with that absolute obligation was a breach of r 4-3.4(c) The position is even clearer, if one considers, not whether the State Attorney's Office in fact carried on an investigation in bad faith against Mr Gersten, but whether Mr Gersten believed that it had. 591 However, that Mr Gersten held such a belief could still be relevant to what sanction should have been imposed on Mr Gersten and whether I should otherwise order under Pt 65A r 3. 592 The Florida Supreme Court was clearly aware of Mr Gersten's claim that the State Attorney's Office was carrying on an investigation in bad faith to harm him; yet the Florida Supreme Court approved "the discipline" recommended by the Referee. I should exercise restraint before venturing to differ from the Supreme Court of Florida. 593 If the sanction recommended by the Referee and imposed by the Florida Supreme Court had been more severe than the sanction actually recommended and imposed, for example if, in accordance with the submission made by the Florida Bar, Mr Gersten had been disbarred, a submission that insufficient weight had been given to Mr Gersten's belief as a mitigating factor might have been stronger. However, if a legal practitioner has steadfastly refused to obey a court order and has been held in contempt of court for refusing to obey the court order and has failed to purge his contempt, then, whatever subjective belief he may have held about the court order, I find it difficult to see how he could escape without any penalty, or how he could be visited with any lesser penalty than the obvious penalty of being suspended from practice at least until he complies with the court order. 594 I accept the submission made by counsel for the defendant that the penalty imposed by the Supreme Court of Florida was appropriate to all the circumstances and within the range of sanctions which might be imposed for similar conduct in New South Wales. Did the Florida Bar Adopt an improperly narrow view of what factors were relevant in determining what would be an appropriate sanction for any misconduct by Mr Gersten? 595 Mr Hendrix on behalf of the Florida Bar took the view that the only relevant issue in the disciplinary proceedings, after they had been revived in 1995, was whether Mr Gersten had refused to comply with a court order which had not been modified or set aside. 596 It was submitted by counsel for the plaintiff that the taking of this view was inconsistent with the preamble to the Rules of Professional Conduct of the Florida Bar, which provides that disciplinary assessment of a lawyer's conduct should be made on the basis of the facts and circumstances existing at the time of the conduct in question and whether discipline should be imposed and the severity of the sanction should depend on all the circumstances. 597 However, in my opinion, the question of whether the Florida Bar took an improperly narrow view of what factors were relevant ceases to have practical importance, in the light of the Referee's ruling, which was upheld by the Supreme Court of Florida, precluding Mr Gersten from pursuing discovery "for the purpose of going behind the order of contempt". If Mr Gersten returned to Florida, what would be likely to happen and would Mr Gersten be able to obtain justice in the courts of Florida 598 It seems clear that, because of supervening circumstances and, particularly, the expiration of the limitation period for any prosecution of the car thieves, the contempt order of 18 March 1993 and the suspension order of 5 March 1998 should, at least, be varied. If I considered that it was unlikely that Mr Gersten would be able to obtain justice in the courts of Florida and in particular if I considered it unlikely that the contempt order and the suspension order could be varied in the courts in Florida, that would be a matter which I would have to take into account and give weight to in deciding whether I should otherwise order under Pt 65A r 3. 599 It was submitted to me by counsel for Mr Gersten that Mr Gersten had so far been denied justice in the courts of Florida, even if the courts themselves were not to blame for this, and that there was no prospect of his obtaining justice in the courts of Florida, should he return to Florida. Ms Calzon gave evidence that in her opinion Mr Gersten would not get a fair hearing in any court in Florida. However, Ms Calzon, who over several years has made extraordinary efforts for Mr Gersten, sometimes appeared in her evidence before me to be an advocate for Mr Gersten. 600 I should exercise considerable restraint in attempting to predict what would be likely to happen, if Mr Gersten returned to Florida, and what would be likely to be the outcome of any court proceeding in Florida. I should keep in mind my own admonition that this Court labours under a lack of familiarity with institutions, practices and procedures in Florida. Furthermore, I would wish to avoid saying anything which, in the event of Mr Gersten returning to Florida, might be used to ground a submission made to a court in Florida and possibly cause some embarrassment to that court. Nevertheless, I consider that I should venture to make some predictions because, as I have said, if it is unlikely that Mr Gersten would be able to obtain justice in the courts of Florida, that would be a matter which I would have to take into account and to which I would have to give weight, in deciding whether I should otherwise order. 601 I accept, and counsel for the defendant accepted, that if Mr Gersten returns to Florida, it is likely that he will be arrested pursuant to the writ of bodily attachment. The outcomes of previous attempts on behalf of Mr Gersten, while he has been outside Florida, to have the writ of bodily attachment quashed, suggest that Mr Gersten would not succeed in any application to have the writ quashed, before he returned to Florida. 602 Once the writ of bodily attachment had been executed by Mr Gersten being arrested, there would be no point in applying to quash the writ of bodily attachment and, indeed, the writ, having been executed, could no longer be quashed. 603 I consider it likely that if, on his arrival in Florida, Mr Gersten was arrested pursuant to the writ of bodily attachment, there would be some form of legal proceeding open to him, whether by way of habeas corpus or otherwise, whereby he could, expeditiously, obtain a determination from a court as to whether any further imprisonment of him would be legally justified. Ms Calzon accepted that such a proceeding would be available to Mr Gersten in Florida. 604 The writ of bodily attachment by its terms was issued by way of enforcement of the contempt order of 18 March 1993. Judge Dean was at pains on 18 March 1993 to say that she was making the order that Mr Gersten be imprisoned until he purged his contempt, not for the purpose of punishing Mr Gersten, but for the purpose of compelling him to comply with her order that he give evidence before Mr Band in the investigation being conducted by Mr Band into the theft of Mr Gersten's car. In her judgment of 18 March 1993 Judge Dean noted that it was within Mr Gersten's power to comply with her order that he give evidence before Mr Band. 605 Although the applications to quash the writ of bodily attachment which were heard by Judge Lando and Judge Sigler were not successful, it does seem to me that, the limitation period for any prosecution of the car thieves having run, the car thieves can no longer be prosecuted for the theft of Mr Gersten's car and the State Attorney's Office could not proceed with the taking of evidence from Mr Gersten for a prosecution which can no longer be brought and hence Mr Gersten is no longer able to comply with Judge Dean's order or to purge his contempt in the way provided for in the contempt order. In these circumstances, it seems to me likely that a court of the Eleventh Judicial Circuit in Florida (or some other appropriate court) would be likely to vacate Judge Dean's order that Mr Gersten give evidence and to vacate, or vary, Judge Dean's contempt order. 606 It would remain true that Mr Gersten would not have complied with Judge Dean's order that he give evidence and would not have purged his contempt in refusing to comply with that order. I would expect a court of the Eleventh Judicial Circuit in Florida to require that Mr Gersten make some amends to the court for having disobeyed its order and for his unpurged contempt of the court. The exchange between Judge Sigler and Mr Rosenblatt which I quoted in summarising Ms Calzon's evidence suggests to me that it would be possible for Mr Gersten to make amends to the court. I would expect such amends to include the making of an unqualified apology to the court for his conduct. The court might well require Mr Gersten to make further amends. I recognise that there is also the possibility, as was suggested by Mr Rosenblatt in argument before Judge Sigler, that some action might be taken against Mr Gersten for his not surrendering himself back into custody, after Judge King's decision was given or at least after Judge Brown made his orders. 607 If the contempt order was vacated or varied, I would expect the terms of Mr Gersten's suspension in Florida to be varied. It was not the intention of the Florida Supreme Court that Mr Gersten should be suspended from practice until the happening of an event, which can now no longer happen, that is, permanently. 608 It was submitted by counsel for the plaintiff that there was no form of legal proceeding available in Florida in which Mr Gersten could seek a determination, with the assistance of the new evidence resulting from the opening of the State Attorney's Office files, of the question whether the State Attorney's Office had conducted an investigation in bad faith to harm Mr Gersten. This may be so, although I would be reluctant to make, and refrain from making, any finding to that effect. I have myself considered this question in the present proceedings and I abide by my conclusion stated earlier in this judgment that I am not satisfied that Mr Gersten has discharged the onus of proving that the State Attorney's Office conducted an investigation in bad faith to harm Mr Gersten. 609 In any proceedings which are brought in Florida, the court in Florida would have advantages over this Court of being able to compel the attendance of all relevant witnesses and of being better able to evaluate any new documentary evidence. 610 A court in Florida would be in a much better position than this Court to evaluate a particular submission made by counsel for the plaintiff, that the disciplinary proceedings which resulted in Mr Gersten's suspension in Florida had been brought prematurely and were therefore invalid, because, until all his appeals had been exhausted, Mr Gersten could rely on the exception in r 4-3.4(c) of an open refusal based on an assertion that no valid obligation existed and Mr Gersten's appeals were not exhausted until 20 February 1996 when the Supreme Court of the United States denied certiorari. By this time the disciplinary proceedings against Mr Gersten were well advanced. 611 It was conceded by counsel for the plaintiff that this argument had not been raised at any stage of the disciplinary proceedings in Florida. 612 I consider that a court in Florida would be in a much better position than this Court to evaluate this argument. At first sight there are a number of possible answers to the argument, including:- 613 (i) Because the point was not taken, it should be regarded as having been waived. 614 (ii) It may be that a petition for certiorari to the United States Supreme Court should not be regarded as an appeal for the purposes of r 4-3.4(c). 615 (iii) The Supreme Court of the United States had denied certiorari, so that, on any view, all appeals had been exhausted, before the Referee was appointed, conducted his hearings and made his report and before the Supreme Court of Florida made its order. 616 (iv) The order of the Supreme Court of Florida as the order of a superior court should be taken to be valid, unless and until it is set aside. 617 I do not propose to attempt to decide whether the submission by plaintiff's counsel should succeed. 618 I consider that I should be reluctant to make any order which would derogate from the authority of courts in Florida. 619 Under the order of the Supreme Court of Florida of 5 March 1998, Mr Gersten was suspended from practice in Florida until he complied with Judge Dean's order that he give evidence and for one year thereafter. He had been held in contempt of court in Florida for his refusal to comply with Judge Dean's order. I could not otherwise order under Pt 65A r 3, unless I ordered that Mr Gersten should be permitted to practice in New South Wales, without having to comply with Judge Dean's order, for the non-compliance with which he has been held in contempt of court in Florida. 620 I have, of course, stated a view that it is no longer possible for Mr Gersten to comply with Judge Dean's order that he give evidence and his inability to comply with Judge Dean's order would furnish a reason for my otherwise ordering. 621 However, a court which has made an order which has not been complied with and which has held that the party who refused or failed to comply with the order is in contempt of the court, has a particular interest in vindicating its authority against the contemnor. This is particularly so, where the court has ordered that the contemnor should be imprisoned until he purges his contempt and the court has seen the contemnor, after being released from custody pending an appeal, not return to custody after his appeal was dismissed but remain in a foreign country where the court's orders cannot be enforced. 622 It is true that any order I make would have effect only in New South Wales and would not have any effect in Florida. Nevertheless, I consider that if I were to make an order that Mr Gersten should be permitted to practice in New South Wales, notwithstanding that he had not complied with Judge Dean's order made in Florida and had been held in contempt of court in Florida and had not purged that contempt of court in Florida and had, after being released from custody pending an appeal, not returned to custody after his appeal was dismissed and had frustrated the further enforcement of the contempt order by remaining outside Florida and outside the United States, I would, in a practical sense, be derogating from the authority of the courts in Florida. 623 It was suggested that the authority of the courts in Florida could be sufficiently vindicated, by my attaching a condition to an order permitting Mr Gersten to practice in New South Wales, without having complied with Judge Dean's order, that he forward an apology in writing to the appropriate court in Florida. However, I do not consider that this expedient would be likely to be acceptable to the courts in Florida. The courts in Florida might, justifiably, regard a letter written by Mr Gersten from a place in the Antipodes securely beyond the reach of their jurisdiction, as an insult rather than a vindication. 624 It was submitted on behalf of Mr Gersten that, if he returned to Florida, he might lose his right to claim refugee status in Australia. Whether this is so would seem to depend on whether by returning to Florida and bringing court proceedings in Florida, Mr Gersten would have voluntarily re-availed himself of the protection of the country of his nationality, the United States of America, or would have voluntarily re-established himself in the United States of America being a country which he left or outside which he has remained owing to a fear of persecution, within pars (1) or (4) of section C of the United Nations Convention relating to the Status of Refugees. The answers to these questions are unclear. The doctrine of "refoulement" or "non-refoulement", which was referred to more than once by counsel for Mr Gersten is irrelevant (see article 33 of the Convention). 625 I note that Mr Gersten's claim to be accorded refugee status has so far failed at all stages, before the Refugee Review Tribunal, a single judge of the Federal Court and the Full Court of the Federal Court, although his application for special leave to appeal to the High Court and his application in the original jurisdiction of the High Court are outstanding. Whether Mr Gersten has been "a Fugitive from Justice" 626 A number of courts in Florida have asserted that Mr Gersten "fled" from Florida or that he was "a fugitive from justice" or that he should have returned into custody after Judge King gave his judgment on 14 September 1993 or at least after Judge Brown made an order that Mr Gersten surrender himself at Dade County Gaol on 4 October 1993. 627 Counsel for the plaintiff made a number of criticisms of these assertions. It was pointed out, correctly, that Mr Gersten did not flee from Florida, in the sense of leaving Florida only after his complaint in the United States District Court had been dismissed by Judge King. He was already in Australia when Judge King's decision was handed down. That courts in Florida drew the inference that Mr Gersten had "fled" was unsurprising, if, as happened before Judge Brown on 4 October 1993, Mr Gersten was not present and his legal representative informed the court that she did not know where he was. 628 It was submitted, correctly, by counsel for the plaintiff that Mr Gersten was not on "bail" or on "bond", after being released from custody pursuant to the order made by the District Court of Appeal on 12 April 1993, and that occasional references to his being on bail or on bond were inappropriate. 629 It was also submitted, again correctly, that the writ of bodily attachment was a writ addressed to the Sheriffs of the State of Florida and not an order directed to Mr Gersten. 630 It was further submitted by counsel for the plaintiff that there was no order directing Mr Gersten to return to custody. However, I consider that the Clerk's minutes in the court records relating to Mr Gersten's case are sufficient evidence that Judge Brown on 20 September 1993 made an order that Mr Gersten appear before him on 24 September 1993 and that Judge Brown on 24 September 1993 made an order that Mr Gersten surrender himself at Dade County Gaol on 4 October 1993. What counsel for Mr Gersten said in court on 1 October 1993 and what Ms Calzon alleged in the petition prepared by her on 1 October 1993 support my conclusion. 631 I have accepted that Mr Gersten did not flee from Florida, in the sense of leaving Florida after his complaint in the United States District Court had been dismissed by Judge King. However, after his complaint had been dismissed, he should have returned into custody. On 18 March 1993 Judge Dean had ordered that he be imprisoned until he purged his contempt of court. On 12 April 1993 Mr Gersten was released from custody through the duration of his appeal to the District Court of Appeal against Judge Dean's order and pending further order of the Court of Appeal. On 2 June 1993 the District Court of Appeal affirmed Judge Dean's order and on 13 July 1993 it issued its formal mandate. 632 I find that on the issuing by the District Court of Appeal of its mandate, the stay of Mr Gersten's incarceration ordered on 12 April 1993 ceased (if it had not ceased earlier). No further order by the District Court of Appeal was required. The provision in the order of 12 April 1993 that Mr Gersten's incarceration should be stayed through the duration of his appeal and "pending further order of this court" is, in my opinion, clearly confined to any further order made by the District Court of Appeal during the pendency of the appeal. If any further order was required, then the mandate was a sufficient further order. 633 However, in the meantime, Mr Gersten had brought his complaint for injunctive relief in the Federal Court. On 30 June 1993 the State Attorney's Office gave Judge King an assurance that it would not seek to enforce the contempt order and would allow Mr Gersten to remain at liberty, until Judge King had had an opportunity to fully consider Mr Gersten's complaint. On 14 September 1993 Judge King delivered judgment dismissing Mr Gersten's complaint. Upon the dismissal of Mr Gersten's complaint, there was no order of any court and there was no undertaking by the State Attorney's Office suspending or qualifying Judge Dean's order of 18 March 1993. Mr Gersten should then have returned into custody, in accordance with Judge Dean's order. He did not do so, and he has remained outside Florida beyond the reach of any means of enforcing Judge Dean's order. In this sense, Mr Gersten has been avoiding the enforcement of the laws of Florida, by remaining away from Florida. As previously stated, I do not consider that I should attempt to decide whether he is a "fugitive from justice" within some technical definition of that term under Florida law. Summary and Conclusion 634 I will summarise some of the principal matters in my adjudication of these proceedings:- 635 1. The onus of proof under Pt 65A r 3 falls on Mr Gersten. 636 2. There are a number of matters which militate against this Court making the findings of fact which Mr Gersten's counsel urged it to make, including the gravity of the allegations made by him, considerations of international comity, this Court's lack of familiarity with institutions, practices and procedures in Florida, the nature of these proceedings as disciplinary proceedings, the absence of any defendant apart from the Law Society of New South Wales, the absence of evidence from many persons who could obviously have given relevant evidence about the findings which the Court was being asked to make, considerations of procedural fairness to persons against whom allegations of improper conduct were made, who were not parties, who did not give evidence and who have not been shown to have had notice of the allegations made against them and the difficulties involved in making findings on the basis of the documentary evidence. 637 3. Counsel for Mr Gersten expressly refrained from submitting that any of the courts in Florida which have decided cases adversely to Mr Gersten acted improperly or corruptly. 638 4. I should not attempt to determine whether Mr Gersten did not commit the alleged Gersten offences in Florida. Alternatively, having made such an attempt, I am not satisfied that Mr Gersten has established that he did not commit the alleged Gersten offences in Florida. 639 5. I should not attempt to determine whether the State Attorney's Office conducted an investigation in bad faith to harm Mr Gersten. Alternatively, having made such an attempt, I am not satisfied that Mr Gersten has established that the State Attorney's Office conducted an investigation in bad faith to harm him. 640 6. Mr Gersten did believe, and had some grounds for his belief, that the State Attorney's Office was carrying on an investigation in bad faith to harm him, but the weight which could properly be given to this factor is limited, having regard to his obligation to obey a court order, to the judgment of the Supreme Court of Florida and to the relatively lenient sanction imposed on Mr Gersten in Florida. 641 7. It is likely that, if Mr Gersten returned to Florida, he would be able to have the contempt order and the suspension order varied. 642 8. The courts in Florida are far more appropriate tribunals than this Court for the determination of the questions Mr Gersten seeks to have determined and for the assessment of new evidence which has become available through the opening of the State Attorney's Office files. 643 9. Mr Gersten as a legal practitioner refused to comply with an order made by a court in Florida, was held in contempt of court, has not purged his contempt of court and, after he was released from custody under an order releasing him from custody only during the pendency of an appeal, did not surrender himself into custody after his appeal was dismissed and has remained outside the territory of Florida, thereby frustrating the enforcement of orders made by the courts in Florida. 644 10. The sanction imposed on Mr Gersten in Florida is well within the range of the sort of sanction which would be imposed in New South Wales for similar conduct. 645 Apart from the matters referred to above, I have taken into account all of the other matters referred to in this judgment. 646 In my opinion, I should dismiss the application. I will not, however, make any formal order until after the parties have had an opportunity to consider this judgment. ********** Last Modified: 09/10/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.